October, 2013
Washington Watch
Inspection News and Views from the American Society of Home Inspectors



Threat to the Home Inspection and Thermal Imaging Industry

EDITED BY ASHI STAFF

For years ASHI has quietly monitored

the inspection industry landscape for threats to our profession. Through a grass roots network of members, committees, chapter leaders, the Council of Representatives and the Board of Directors, we effectively survey and­—when needed—react to changing conditions. ASHI is also the only association of professional home inspectors with a lobbyist in Washington DC, allowing us to protect the entire profession from regulation that would be adverse to the profession and promote positive policy, thus enhancing the home inspection profession and adding value for our clients.

Now a threat to our profession has materialized. First recognized by some ASHI members in 2008, the threat has now reached a critical stage and requires all members’ attention and consideration. This threat is from a company in Oxford, Mississippi, HomeSafe Home Services, incorporated in 2003. One of the HomeSafe cofounders, while working as a researcher at a university in Oxford, Mississippi, used industry-developed infrared techniques and technology to supplement his acoustic research to locate termite colonies inside the walls of buildings.

Over the course of several years, the researcher and his associates developed patents on procedures related to the use of infrared camera technology in a residential structure. While much of his work can be shown to be from widely documented procedures developed by others in the 1980s and 1990s, the patents applications were submitted to and approved by the US Patent Office. These patents are now the basis of claims being made against inspectors and thermographers who use infrared camera technology.

Around 2005 or 2006 HomeSafe began sending letters to home inspectors and energy auditors who use infrared cameras in evaluating homes, threatening legal action for patent infringement. HomeSafe claims, “It is impossible to perform a complete and accurate inspection or even a partial inspection with an infrared camera without utilizing HomeSafe’s patented methods and infringing.”

Additionally they allege, “If you are using an infrared camera to detect anomalies in a home related to indoor air quality, energy loss, moisture intrusion and electrical hazards among others, you are violating HomeSafe’s patents.”

ASHI established a task force in 2011 to assess these threats. The task force consulted a number of expert patent attorneys from around the country and also worked to assemble a coalition of industry stakeholders to determine the veracity of HomeSafe’s claims. As the task force continued its work, the threat from HomeSafe appeared to diminish and over the past year ASHI has been monitoring the situation.

On August 7, 2013 HomeSafe filed its first lawsuit in the Northern District of Mississippi for patent infringement against a home inspector in Tupelo, Mississippi. ASHI learned of this action on August 19, and immediately began taking steps to reactivate the work of the task force and make contact with industry stakeholders. Our intention was to assist this inspector, who is a member of another inspection association, to ensure he had the information and resources he needed to protect his assets.

In the meantime, the owner of the defendant’s home inspection association stepped in, before the court date for the defendant response on August 28, and offered to pay HomeSafe a cash settlement to drop the suit. While it might have been intended as a generous gesture, this offer and acceptance of cash provides HomeSafe a quick win and additional funds to file more legal action. This ill-advised payment to HomeSafe will further embolden them to pursue their legal strategy. In the end, while certainly a godsend for the inspector involved, this can mean more threats and more suits by HomeSafe against home inspectors.

Be aware that there are also some in the home inspection industry beginning to report they have a “magic bullet” or “shield” against HomeSafe’s threats. They lead their members to believe that if a thermographer adopts their “procedure,” they will be protected. Before you accept this, you should consult with a patent attorney. You are likely to discover that while the tactics suggested might be marginally helpful if you have to defend yourself in court, those tactics are in no way likely to deter or prohibit HomeSafe from engaging you in a civil action in US Federal Court.

ASHI is taking positive steps to assist its members who use thermal imaging as a part of their business. ASHI’s actions will also benefit any residential thermographer, regardless of association or industry affiliation. An ASHI 2011 member survey indicates that today there are close to 2,000 ASHI members using thermal imaging in their business, and there are many thousands more across the thermal imaging community.

ASHI will engage all thermographers and the thermal imaging support industry to join our coalition and develop a unified strategy to protect the interest of our members. This will require industry-wide cooperation. In the days ahead, ASHI will issue a Call to Action to let each of you know how you can show your support for our efforts to protect not just our members but the industry as a whole.

Finally, please consider what happens if the industry ignores this issue. Predicting the future is never easy, but we can be sure of one thing: HomeSafe will not quietly give up their fight to control the residential infrared market. They have proven they are committed to achieve their objectives with ten years of effort. Do you want to face them alone or do you want to stand with thousands of inspectors and thermographers across the country and meet this challenge head on?

ASHI will provide additional updates as this situation unfolds.

Update

The above notice to ASHI members was sent out by email on August 30th and again on September 1st as part of the ASHI e-newsletter, “First Thing.” Since then, ASHI, with the help of ASHI’s Washington lobbyist, Randy Pence, has taken action. ASHI has become a member of the Coalition for Patent Fairness, which means ASHI will collaborate with 65 national associations and 100 corporations that share a common interest in combating abusive patent enforcement, also known as ”patent trolling.” ASHI will align itself with the largest and most influential group of U.S. national business interests seeking a legislative remedy on this issue.

The principal legislative action items will include:

Adding ASHI’s name to the Coalition membership list: This aids the effort to broaden profession/industry footprint on this issue.

ASHI support for forthcoming legislation: We expect to see legislation introduced by the Chairmen of their respective Committees on the Judiciary in the House and Senate. Randy Pence believes that the current bills, S1013 and HR2639, were incomplete remedies. In his initial discussion with the Coalition, the leaders agreed with that assessment. But more comprehensive legislation is in the pipeline, legislation that will roll in S1013 and HR2639. That draft legislation is currently in the final stages with the Legislative Counsel and not yet subject to review. However, Pence anticipates that the new bills will be more attractive for ASHI’s purposes; he recommends that ASHI’s lobbying activities set forth below be targeted for those forthcoming bills when they are introduced.

Legislative Alerts as needed to the ASHI membership: These alerts will be timed for after the new bills are introduced. The alerts will be part of a coordinated Coalition effort to educate Members of Congress/Senators about the introduction of the bills, and the importance of the legislation to ASHI and its members, and motivate elected representatives to give favorable consideration to the new legislation. The goal will be to help build the co-sponsorship list. ASHI will seek support in both Houses of Congress and both parties.

Introduction of ASHI testimony: While initial hearings have occurred earlier in this session of Congress, the introduction of new legislation may give rise to a new round of hearings. If this happens, ASHI has offered to prepare and submit testimony for any forthcoming hearings. Further, ASHI has offered to produce a home inspection witness to testify, if needed, for any such hearings. ASHI’s offer was appreciated and received gracefully, and it was made clear that ASHI’s written testimony will be welcome to help build out the hearing record.

InspectPAC support: InspectPAC allows ASHI special opportunities to call the attention of Members of Congress and the Senate to issues of special interest to InspectPAC supporters. As InspectPac informs supporters of the latest issues of interest, it will make certain to make prominent mention of the patent trolling issue, the relevant bill numbers, and it will suggest that members make strong consideration of the legislation, and, further, task their Judiciary Committee staff to research the issue.

In addition to direct lobbying by ASHI’s lobbyist, possible Hill meetings to include the ASHI President and Executive Director: ASHI has identified this issue as a direct threat to its membership. We plan for a personal visit to Washington, D.C., to demonstrate special association interest in issues that are key to the future of ASHI and its membership. We will recommend seeking times to present the case to the Congressional Judiciary Committee Members and staff on Capitol Hill.

ASHI has aligned itself with the leading national effort regarding the patent trolling issue on behalf of the ASHI membership. ASHI members could not do this but for their membership in our association, and ASHI is their representative on this issue. There is no other home inspection-specific representative on the Coalition for Patent Fairness at this time. ASHI is leading the way! 

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In the August issue of the Reporter, I wrote an article about ASHI’s presence in Washington, D.C. The basis of the article was having a home inspector’s voice in the capital made good sense. Sort of like an insurance policy.

Who would have thought, just two months later an assault would appear that will dramatically change the way many home inspectors earn a living. The article on pages 10 and 11 in this issue of the Reporter explains this issue in great detail and just how important our voice is needed on The Hill.

So, I’m asking you to please help us by contributing to InspectPac so our livelihood is not squelched by unscrupulous companies. For info on how to contribute, contact Virginia Baker, virginiab@ashi.org, 847-954-3177.

Frank Lesh
Interim Executive Director
ASHI