According to the survey, the majority of companies surveyed had their IP budgets cut in the last 12-18 months. In fact, almost 40% experienced a cut of over 30% of their budget.

Key findings include:

The majority of companies surveyed had their IP budgets cut in the last 12-18 months. In fact, almost 40% experienced a cut of over 30% of their budget.

72% of respondents brought some patenting procedures in-house in the last 12-18 months. Approximately half of the companies surveyed have no further plans to bring any steps in-house in 2010.

The cost-saving measure most cited for 2009 was to reduce the number of foreign countries entered. Specifically, between 2008 and 2010 there was an overall decrease in the average number of countries entered – from 6.6 countries in 2008 to 6.3 countries planned for 2010.

Download the 6-page report here.

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Taking the Federal Circuit at its literal word, some counsel have concluded that a client no longer needs to obtain a formal opinion of counsel upon learning of a patent that raises infringement concerns.  Recent cases show, however, that the failure to obtain an opinion of counsel, while no longer providing a de facto automatic ground for finding willful infringement, still weighs in the analysis of whether infringement was willful, and may heavily influence a trial court’s decision on whether to enhance damages should a jury find willful infringement.

(a) Impact of the Failure to Obtain an Opinion of Counsel on Determining if the Infringement was Willful

Enhancing damages for willful infringement involves a two-step process.  First, the fact finder, either the jury or the district court, must find that the infringing conduct rose to the level of being “willful infringement.”  Second, after considering the totality of the circumstances, the district court must determine whether, in its discretion, the damages should be enhanced, and if so to what degree.

In analyzing the first prong, i.e., was the infringement willful, the fact-finder applies the standard of willful infringement set forth in Seagate. Under this standard, the “patentee must show by clear and convincing evidence that the infringer acted despite an objectively high likelihood that its actions constituted infringement of a valid patent.”  Second, “the patentee must also demonstrate that this objectively-defined risk . . . was either known or so obvious that it should have been known to the accused infringer.”

Post-Seagate, some district courts have held that the presence or absence of an opinion of counsel has little relevance to whether there was an “objectively high likelihood” of infringement.  While the presence or absence of an opinion of counsel may not bear on whether there was or was not an objectively high risk of infringement, the reasoning contained in an opinion of counsel can be evidence to show there was no objectively high risk of infringement.  Seagate, 497 F.3d at 1374.  The absence of an opinion of counsel, however, has relevance to the second prong of Seagate’s standard, i.e., whether the accused infringer should have known of the high risk of infringement.  For example, denying an accused infringer’s motion in limine seeking to preclude the patentee from telling the jury that the accused infringer had not obtained an opinion of counsel, one court stated “that nothing in Seagate forbids a jury to consider whether a defendant obtained advice of counsel as part of the totality of the circumstances in determining willfulness[.]”

The Eastern District of Texas has denied an accused infringer’s JMOL motion seeking to overturn the jury’s finding of willful infringement, in part, “because it was undisputed at trial that Defendant chose not to obtain an opinion of counsel, aside from the informal investigation conducted by [its in-house counsel], [and] the jury could have taken this fact into account in determining that Defendant willfully infringed.”  The district court expressly stated that “the lack of opinion of counsel is one factor of many that the jury could have taken into account in determining whether Defendant willfully infringed.”

Even in Seagate, the Federal Circuit instructed that “[a]lthough an infringer’s reliance on favorable advice of counsel, or conversely his failure to proffer any favorable advice, is not dispositive of the willfulness inquiry, it is crucial to the analysis.”  Additionally, the Seagate court’s instruction that “standards of commerce” are factors that the district courts must consider in the willfulness analysis, allows for the possibility of finding willful infringement where an infringer fails to obtain an opinion of counsel under circumstances where a reasonable prudent business person would have sought an opinion of counsel.

The foregoing shows that failing to obtain an opinion of counsel creates evidence that a patentee can present to the jury to support a claim of willful infringement.  On the flip side, the Federal Circuit has instructed that “a competent opinion of counsel concluding either that [the accused infringer] did not infringe the [asserted] patent or that it was invalid would provide a sufficient basis for [the accused infringer] to proceed without engaging in objectively reckless behavior with respect to the [asserted]  patent.” Thus, where an accused infringer presents evidence that it obtained and relied in good faith on a competent opinion of counsel that evidence can defeat a patentee’s efforts to prove willful infringement.  Should an accused infringer obtain an opinion of counsel but choose not to waive privilege and produce the opinion, district courts have held that neither party may argue any aspects of opinions of counsel to the jury and the jury will not be instructed on any aspects of an opinion of counsel.  Spectralytics, Inc. v. Cordis Corp., 2009 WL 3851314, *4 (D. Minn. Jan. 13, 2009).

(b)     Impact of the Failure to Obtain an Opinion of Counsel on District Court’s Decision to Enhance the Damage Award

Post-Seagate opinions show that if a jury finds willful infringement, the failure of an accused infringer to have obtained an opinion of counsel can heavily influence the district court’s decision to enhance the damages.  Recently, the Federal Circuit instructed in i4i Ltd. Partnership v. Microsoft Corp., 589 F.3d 1246, 1273-75 (Fed. Cir. Dec. 22, 2009), that the factors a district court must consider in determining whether to enhance damages are “distinct and separate” from the factors the jury, or the district court if acting as the fact finder, considers in determining if the infringing conduct meets Seagate’s standard of willful infringement.  For enhancing damages, a district court considers the nine factors set forth in Read Corp. v. Portec, Inc., 970 F.2d 816 (Fed. Cir. 1992).  See i4i, 589 F.3d at 1274 (“the standard for deciding whether-and by how much-to enhance damages is set forth in Read, not Seagate”). The second Read factor addresses “whether the infringer, when he knew of the other’s patent protection, investigated the scope of the patent and formed a good-faith belief that it was invalid or that it was not infringed.”  An accused infringer’s failure to obtain an opinion of counsel may show that the accused infringer failed to adequately investigate the patent.  In i4i, for example, the Federal Circuit affirmed a 20% enhancement (amounting to $40 million) by the Eastern District of Texas court in the damage award where the district court found that the accused infringer, after learning of the patent, failed to obtain an opinion of counsel before continuing with its accused activity.  Id. at 1274-75.

More recently, the district court in I-Flow Corp. v. Apex Med. Tech., Inc., 2010 WL 114005, *2 (S.D. Cal. Jan. 6, 2010), enhanced a six million dollar damage award by one million dollars predominantly because the accused infringer failed to timely seek an opinion of counsel.  The district court found that when attempting to design around the asserted patent, the accused infringer did not obtain a formal opinion of counsel, but instead relied on conclusions from its technical employees that the redesigned version of the accused product would not infringe. While the attempt to design around the patentee’s product favored not enhancing damages, the district court found that the failure to obtain an opinion of counsel until after the patentee had filed its infringement suit supported enhancing the damages.  In considering the other Read factors, the district court found that only one other factor, the closeness of the case, favored enhancing damages.  Despite that only two of the nine factors favored enhancement, the district court opted to enhance the damage award, albeit only by about 16%.

Other cases show that post-Seagate district courts give weight to an accused infringer’s failure to have obtained an opinion of counsel when deciding whether to enhance damages.  For example in Finjan Software, Ltd. v. Secure Computing Corp., 2009 WL 2524495, *15 (D. Del. Aug. 18, 2009), the court enhanced the damage award by 50% based on the accused infringer copying the patented product and failing to obtain an opinion of counsel.  In Wordtech Systems, Inc. v. Integrated Network Solutions, Inc., 2009 WL 113771, *2-*3 (E.D. Cal. Jan. 15, 2009), the court trebled the damage award based on the accused infringer’s copying of the patentee’s product and its failure to seek an opinion of counsel after being notified by the patentee of the alleged infringement.  In Minks v. Polaris Indus., Inc., 2007 WL 788418, *1-*2 (M.D. Fla. March 14, 2007), aff’d, 546 F.3d 1364, 1380-81 (Fed. Cir. 2008), the court doubled the damage award because the accused infringer “waited until it had actually been accused of infringement before investigating the issue.”

(c)      Conclusion

Today’s poor economic climate, coupled with the Federal Circuit’s pronouncement that an accused infringer does not have an affirmative obligation to obtain an opinion of counsel, may entice some corporate counsel to forego obtaining opinions of counsel as a cost-savings measure.  But relying on the Federal Circuit’s pronouncement as justification for such action may give counsel a false sense of security.

The post-Seagate cases show that a patentee can strategically use an accused infringer’s failure to obtain an opinion of counsel as evidence presented to the jury to support the patentee’s claim for willful infringement.  Furthermore, the cases show that where a jury finds willful infringement, district courts give significant weight to the accused infringer’s failure to have timely obtained an opinion of counsel in deciding whether to enhance damages.  Conversely, if the accused infringer has obtained a competent opinion of counsel, and elects to waive privilege and rely on the opinion, the opinion provides evidence to refute the claim of willful infringement.  Relying on an opinion of counsel can also provide a defense to a charge of inducing infringement by negating the element of intent.  DSU Med. Corp. v. JMS Co., Ltd., 471 F.3d 1293, 1307 (Fed. Cir. 2006).

Further, even if the jury finds willful infringement, under the Read factors, the district court should be able to consider the opinion of counsel as a factor that supports refusing to enhance damages.  Where an accused infringer obtains an opinion of counsel, but opts not to waive privilege and refuses to disclose the opinion, that decision may effectively nullify the ability of both parties to use aspects of opinions of counsel in the willful infringement analysis.  (Should a patentee also assert claims of inducing infringement, however, other considerations should be assessed in view of Broadcom.)

Thus, in today’s patent litigation opinions of counsel still serve a valuable function in defending against claims of willful infringement.  Being penny-wise and pound-foolish, potential accused infringers act at their peril in opting not to seek an opinion of counsel upon learning of a patent that raises substantial infringement concerns for a significant accused product or process.

Today’s post is by Guest Barista Robert A. Matthews, Jr., Matthews Patent-Law Consulting.and was first published in his Patent Happenings® newsletter.

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I was recently contacted by a large printer manufacturer (“PrinterCo” for the purposes of this discussion) to see whether I was interested in preparing patent applications for the price of $1300 each. This price seemed somewhat ridiculous to me because even the most “bargain basement” patent preparation prices that pop up on my Google sidebar advertising do not seem to dip beneath a threshold level of $2800. And, as a high level chemical patent prosecution attorney, I routinely drafted patent applications that cost $15K or more in 2005. PrinterCo’s desire to obtain patent applications for $1300 thus both surprised and intrigued me, and I wanted to learn more about what type of patent application its management sought for this price.

That PrinterCo was seeking to obtain patent drafting services at a lower price than I would expect might be explainable because many IP strategy savvy companies seek to maximize their freedom to operate by filing patent applications that they never intend to see through to issuance. This “publish and abandon” approach can effectively prevent others from obtaining patent rights that can block a company like PrinterCo from freely developing products in a particular technology area. However, because these patent applications are not drafted with the intent to issue, the filing company will not end up with enforceable rights. Nonetheless, “freedom to operate” afforded by publishing and abandoning applications addressing a relevant technology can serve as a valuable right in itself. It thus made sense to me that PrinterCo might seek to file a large number of patent applications to strategically prevent other companies from patenting in its technology space.

A “freedom to operate” patent application can certainly be prepared in about 8-10 hours by someone with a few years of experience. Therefore, $1300 would not result in a terribly low hourly rate for someone working out of his home with little or no overhead. “Freedom to operate” is all that can reasonably be expected in this time, however, because even the most experienced person requires time to understand the invention to be claimed and to properly draft claims that will avoid the prior art. Indeed, because it takes time to read prior art references, one cannot understand the relevant prior art in a total of 8-10 hours, especially in crowded areas such as printer, ink and cartridge technology relevant to PrinterCo’s business.

Fully expecting the $1300 to apply to such a freedom to operate strategy, I was quite honestly shocked to find out that PrinterCo fully intended to see patent applications drafted for this price through to issuance. Furthermore, PrinterCo’s managing patent attorney stated that he expected to obtain patents from this process that could be the subject of future litigation. After hearing this strategy, I politely declined PrinterCo’s proposal and wished the attorney farewell, as I saw no way I could ethically meet PrinterCo’s objectives.

Frankly, even if PrinterCo had wanted me to prepare “freedom to operate” patent applications for $1300, I likely would not have done so. I was actually more interested in learning about this company’s patent strategy in view of this ridiculously low price. And, now that I know, it appears clear that PrinterCo is pursuing a short-term cost reduction strategy directed toward allowing it current management to meet cost cutting goals, at the expense of the long term asset value of the company. Let me explain what I mean by this. . . .

For the last several years, printer companies have engaged in aggressive patenting strategies that effectively require printer users to purchase ink refills exclusively from them. Companies such as PrinterCo likely lose money on printers, scanners, etc., but make huge profits on patented ink cartridge refills that work only in their proprietary equipment. (In 2008, it was estimated that printer ink costs from $3K to $7K per gallon.) Moreover, these companies have undertaken expensive patent litigation directed to preventing third parties from selling “generic” printer ink refills.

Critically, such a business strategy requires any patents covering the ink and cartridge refills be skillfully drafted such that the claimed invention cannot easily be designed around without the copier also incurring of patent infringement liability. Moreover, the profit margins involved in printer ink cartridge refill sales are such that third parties will clamor to knock-off refills for any top selling printer or scanner if the underlying patent protection is weak. If PrinterCo or its competitors now abandon their aggressive patenting strategies, competitors will certainly see an opportunity to introduce knock-off ink and cartridge refills, and erosion of their profit margins will invariably occur.

Other than making PrinterCo’s current legal management look effective in cutting legal budgets in today’s economic climate, I cannot fathom why this company is trying to lower its patent application costs to the ridiculously low price of $1300. PrinterCo’s ability to maintain its profit margins depends on its obtaining strong patent rights. A substantial aspect of PrinterCo’s corporate asset value lies in its ability to prevent others from knocking off its printer cartridge ink refills. In other words, PrinterCo’s patent strategy serves as the foundation for the company’s ability to execute on its business strategy. It is thus nothing short of idiotic for PrinterCo to allow its legal managers to treat its patent application drafting processes as vehicles for cost control, where the motivation for the reduction in patent costs is certainly the legal staff’s meeting of their cost cutting objectives.

Put simply, PrinterCo’s corporate asset value is jeopardized by its legal managers self-serving objective to lower the company’s patent costs. If PrinterCo continues to pursue this low cost patent application strategy, I predict that its cartridge ink refill business will quickly become commoditized as a result of low cost, non-infringing competitive knock offs. And, since the public expects PrinterCo’s printers, scanners etc. to be low priced, there will be little ability for the company to obtain premium margins on its product lines. In short, PrinterCo quite likely might find it difficult to remain viable in the coming years due to its current short-sighted patent strategy. Hopefully, PrinterCo’s management, both legal and otherwise, are still around when shareholders realize that the company’s patent strategy has resulted in the company no longer being a viable specialty products company. I would love to see them held accountable for such mis-management.

Today’s post is by Guest Barista Jackie Hutter, Proprietor of the IP Asset Maximizer Blog and Chief IP Strategist at The Hutter Group, LLC, and was first published on the IP Asset Maximizer Blog.

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Generally speaking, IP audits are either externally or internally driven. Externally driven IP audits are performed in response to triggers such as infringement litigation, bankruptcies, funding transactions, or transactions involving the sale of the business or certain assets.  Under this circumstance, IP audits are often performed under time constraints and are, by their nature, reactive.

Internally driven IP audits, on the other hand, are initiated as a pro-active business practice by the holder of the IP. Internally driven IP audits can be used to identify:

• New revenue streams related to proprietary products and licensing;
• New sources of capital and funding;
• Strategic positioning/repositioning opportunities;
• Business risks and opportunities related to IP such as patent, copyright, or trademark applications that should be filed, or securing certain IP rights from employees;
• Business process changes in R&D, Engineering, HR, or other areas; and
• Financial reporting disclosure items related to IP.

However, in the wake of the credit meltdown it may be hard to justify a “spend money to make money” philosophy. How does a firm measure the potential value of internally driven IP audits in relation to a tougher economy?

To find out, I spoke with Glenn Perdue, an IP valuation expert. Perdue, who leads Kraft Analytics, LLC, a valuation and litigation support consulting firm in Nashville, Tennessee, has more than 20 years of experience in business strategy, technology strategy, capital formation, valuation and litigation support.

Is performing an IP audit a good move in today’s business climate?

In any business climate, it makes sense to identify and understand those assets that allow a company to create economic value for customers and owners. In the industrial age, value-enabling assets were largely physical in nature. Today, value-enabling assets are more intangible. It’s a generally accepted belief that the majority of public company market value is not value identified on a company’s balance sheet. Instead, most value is attributed to intangibles assets – often intellectual property – that may not appear on the balance sheet at all. Therefore, companies that rely on IP to create economic value should catalog and understand these intangible assets so that their value can be better managed and optimized. An IP audit is often a good starting point in this process. However, an IP audit is one component of a more comprehensive IP management approach that may include the following:

1. IP Audit – The assessment component, which informs management as to the nature and value of their IP assets at a certain point in time.
2. IP Planning and Policy Development – Based upon information obtained through the IP audit, legal counsel, and business/industry research, management develops IP plans and policies in an informed manner.
3. Execution – After developing plans and policies, managers begin executing the plan through the implementation of business processes, licensing, enforcement, and other activities identified to optimize IP-related value creation.
4. Analysis and Reporting – This final step allows management to assess results and refine the process. In addition to internal reporting, the IP management process may also yield information needed for disclosure in external financial reporting.

What advice would you offer an attorney who was presenting the idea of conducting an IP audit to his client?

Making the case for conducting an IP audit is situational. Reasons might include:

• A prospective business purchase or sale that involves IP assets
• IP sale or licensing transactions
• Equity transactions in which investors, such as VCs, consider IP assets to be a critical component of the deal
• Debt and securitization transactions that rely upon IP as the underlying collateral
• Bankruptcy and restructuring
• Post-transaction accounting requirements (e.g. FAS 141)
• Management insight and planning as related to marketing, finance, risk assessment, and business strategy
• Legal and regulatory compliance

Given this broad range of motivations, an attorney’s recommendation to conduct an IP audit may be event-specific. In the case of transactions involving IP, the due diligence process is similar to an audit in many ways. If the audit is required, convincing the client may not be an issue. However, if the audit is being suggested for planning or compliance purposes, risk mitigation or profit optimization motives should be articulated to make the business case.

What is the danger of not understanding one’s IP holdings?

IP value is, first and foremost, contextual. The value of IP in the hands of one enterprise may be different than the value of the same IP in the hands of another enterprise. Access to the various means of exploiting IP assets is an important factor. Consider a drug patent held by a university. The university may hold the rights to an important piece of IP but lack the means of producing and marketing a major pharmaceutical product that embodies that patent and fully exploits its economic value. Since universities are not in the business of making products, they choose to license such inventions. Thus, the valuation issue faced by a university relates more to up-front, milestone, and royalty payments for the use of the IP by others. However, a pharmaceutical company that holds the same patent faces a broader decision as to whether it should (i) make and market the product itself, (ii) out-license the patent to another company that might be better-suited to optimizing the patent’s value, or (iii) use the patent in a more defensive manner. In this case, the pharmaceutical company might consider a valuation analysis as a basis for making this determination.

Tell me about the relation between IP audits and the Sarbanes-Oxley Act.

A broad view of Sarbanes-Oxley is that it requires corporate managers and directors to be better stewards of company assets – including IP assets – while providing greater transparency and accountability with respect to financial reporting. Given that IP assets are a predominant basis for value creation, particularly in science and technology-based companies, the duty of care imposed by Sarbanes-Oxley is considered applicable to IP assets by many. In light of this – and the fact that the value of these assets are typically not reflected in GAAP-based financial statements – many believe that IP assets, their economic value, and related risks must be accounted for elsewhere and disclosed if material. Thus, companies with material IP assets may be advised by counsel to conduct regular IP audits and valuations to maintain compliance with Sarbanes-Oxley.

Can you describe the need for IP audits in the non-profit sector?

I serve on several non-profit boards, including a research foundation board that performs the technology transfer function for a major university. I’ve witnessed first-hand how large non-profits are increasingly aware of accountability and transparency in their governance and financial reporting functions. I’ve also seen how this issue has affected non-profit hospitals. In the case of universities and private research institutions that generate IP, they may not be accountable to shareholders but they are certainly accountable to trustees, boards of directors, donors, and other stakeholders that place trust in them to be good stewards of the institution’s assets, in this case IP assets. Therefore, looking at it through this lens, such institutions may not be public companies and subject to Sarbanes-Oxley directly, but they may certainly be held to a similar standard of care and thus must be diligent in protecting and optimizing the value of their IP while also being mindful of the broader mission of their institution.

Sarbanes-Oxley regulates public companies. What about closely owned companies? Do you see much activity among them in your valuation practice?

Many lawyers I’ve spoken to about this issue contend that small growth companies considering an IPO or sale to a larger public company must move towards Sarbanes-Oxley compliance early on. However, even if an IPO or M&A transaction is not on the horizon, some attorneys suggest that the presence of outside investors in a private company can indirectly expose a company to Sarbanes–Oxley, which may be invoked as the basis for a standard of care that is owed the investors.

Is it wise for attorneys to suggest that experts be brought in to determine possible new product development, potential competitor infringement, etc.? If so, why?

In my work as an expert in IP-related litigation, I’m brought in by attorneys regularly to assist in cases. My experience with the attorneys I’ve worked with has been that they have a good sense of when and why outside experts need to be engaged. One of the primary factors to consider in this determination is the existence of internal expertise at the client company. The need for outside experts may be due to a lack of requisite expertise within the client company and/or the need to hire an outsider for purposes of objectivity. In the case of litigation or auditing, the objectivity of an outside expert is generally desired.

Today’s post is by Guest Barista Dawn Corrigan, who writes for IMS ExpertServices™ – the premier expert witness delivery firm. This article was originally published in ipFrontline and subsequently appeared in BullsEye, the newsletter of IMS ExpertServices.

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International patent filings under WIPO’s Patent Cooperation Treaty (PCT) grew by 2.4% in 2008, to nearly 164,000 1 applications. While the rate of growth was modest, as compared to an average 9.3% rate of growth in the previous three years, the total number of applications for 2008 represents the highest number of applications received under the PCT in a single year. Continued use of the PCT, a cornerstone of the international patent system, indicates that companies recognize the importance of sustained investment in research, development and innovation to remain competitive even within challenging economic conditions.

Lawyers Get Right-Sized

Since last October, the legal community has seen a steady down-sizing of sizeable law firms across the country.  According to an International Herald Tribune report, a number prominent national law firms have either laid-off employees or closed entirely. Since then, a variety of firms have also laid off hundreds of employees, according to an article in The Legal Intelligencer.  The American Lawyer and its sibling publications are providing ongoing coverage of law firm layoffs and related news at The Layoff List.   Will we now see more work sent to the (more affordable) Midwest?

Patent CLE Group Offers Loyalty Program

At a time when law firms and in-house legal departments are tightening their belts, Patent Resources Group (PRG) has introduced a new Loyalty Program to provide patent legal professionals the valuable Continuing Legal Education (CLE) credit they need to continue practicing. The new program offers exclusive pricing on any 2009 Advanced Courses for attendees of any one of Patent Resource Group’s 2008 Advanced Courses, Workshops, Seminars or Patent Bar Review courses. Additionally, attendees of any 2009 course will receive Loyalty Program pricing for any subsequent Advanced Courses in 2009, as well as in 2010.

Stimulus-Response

The Economic Strategy Institute (ESI) announces Smart Globalist, a new Web magazine providing daily coverage of news and analysis from around the world on globalization and related international affairs. In addition to syndicated content from newspapers, magazines, broadcast media, expert blogs, and academic journals, SmartGlobalist will also provide its own original articles and analysis. Readers will be able to cover the world of globalization from one easy to navigate page.  In this first issue, the lead editorial focuses on the need for a U.S. stimulus package to be balanced by even bigger stimulus in countries like Germany and China that have large export surpluses.

Let’s Make a Deal

Corporate mergers fell on economic hard times.  According to a survey by Thomson Reuters, the $2.9 trillion in worldwide announced mergers and acquisitions recorded during 2008 was down 29.6 percent from 2007.  Fourth quarter totals were down 32.6 percent from the previous quarter and 37.6 percent from the fourth quarter of 2007.  Have things changed?  Thomson reported that 1,194 transactions had been canceled during 2008.  On the other hand, we may start to see an increase in deals that are not optional, i.e., the sale of distressed assets and the acquisition of distressed companies. We could see an increase in foreign acquisitions of U.S. companies and assets.  Will it include law firms?  (via Law.com)

Will Lawyers Bike to Work?

You can now get a Bicycle Tax Credit (BTC) if you bike to work.  Passed as part of that $700 billion bailout plan, the BTC allows employers to reimburse employees up to $20 per month for bicycle-commuting related expenses; the employer can then claim a tax deduction for the reimbursements. The law went into effect on January 1, 2009.  The problem, of course, is not there there are not enough tax incentives but that there are too many barriers to bike commuting.  Like lack of safe pathways.  Only four tenths of 1 percent of Americans get to work on a bicycle. Seventy-seven percent drive — by themselves! The EPA blog asks why people are or aren’t biking to work, and safety concerns, distance, and smelliness(?) were the key barriers.  Of course, you could always try creating your own bike lane.  (via World of Work)

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