September 28, 2006
VIA FACSIMILE & U.S. MAIL
- -------------------------
Mr. Gopal Dharia
Staff Accountant
Division of Corporation Finance
U.S. Securities & Exchange Commission
100 F Street, N.E., Mail Stop 3720
Washington, D.C. 20549
Re: PATRIOT SCIENTIFIC CORP.
Item 4.02(a) of Form 8-K filed on September 13, 2006, as amended on
September 15, 2006 File No. 0-22128
Dear Mr. Dharia:
Thank you for your letter dated September 19, 2006 regarding the above
8-K. Patriot Scientific Corporation (the "Company") is in the process of having
its financial information re-audited by its current auditors and plans to file
its 10-KSB for the year ended May 31, 2006 on or before October 15, 2006. In
addition, we plan to file our amended financial information covering the years
ended May 31, 2002, 2003, 2004 and 2005, as soon thereafter as practicable, and
concurrently, if possible. We have included your comment and our response,
below.
Accounting comments:
- --------------------
Please disclose in your amended filings if your certifying officers have
considered the effect of the error on the adequacy of your disclosure controls
and procedures as of the end of the years ended the previous years ended May 31,
2005, 2004, 2003 and 2002, and the quarterly reports for the quarters ended
August 31, 2005, November 30, 2005 and February 28, 2006. Also revise Item 4.2
to disclose what effect the errors had on your current evaluation of disclosure
controls and procedures as of the year ended May 31, 2006.
Response:
- ---------
We plan to include the following in our Report on Form 10-KSB for the year ended
May 31, 2006 in order to disclose the effect of previous accounting errors on
our current evaluation of disclosure controls and procedures as of the year
ended May 31, 2006:
Evaluation of Disclosure Controls and Procedures
As required by Rule 13a-15(e) under the Exchange Act, as of May 31,
2006, the end of the period to which this annual report relates, we
have carried out an evaluation of the effectiveness of the design and
operation of the Company's disclosure controls and procedures. This
evaluation was carried out under the supervision and with the
participation of our management, including our Chief Executive Officer
and our Chief Financial Officer.
Disclosure controls and procedures are controls and other procedures
that are designed to ensure that information required to be disclosed
in our reports filed or submitted under the Exchange Act is recorded,
processed, summarized and reported, within the time periods specified
in the Securities and Exchange Commission's rules and forms.
Disclosure controls and procedures include, without limitation,
controls and procedures designed to ensure that information required
to be disclosed in our reports filed under the Exchange Act is
accumulated and communicated to management, including the Chief
Executive Officer and Chief Financial Officer as appropriate, to allow
timely decisions regarding required disclosure. Management recognizes
that any controls and procedures, no matter how well designed and
operated, can provide only reasonable assurance of achieving their
objectives, and management necessarily applies its judgment in
evaluating the cost-benefit relationship of possible controls and
procedures. Based on the evaluation of our disclosure controls and
procedures as of May 31, 2006, our Chief Executive Officer and Chief
Financial Officer concluded that, as of such date, our disclosure
controls and procedures were not effective due to the following two
discrete issues, that pertain to material weaknesses, discussed in
more detail, below.
Notwithstanding the material weaknesses discussed below, the Company's
management has concluded that the consolidated financial statements
included in this Annual Report on Form 10-KSB fairly present in all
material respects the Company's financial condition, results of
operations and cash flows for the periods presented in conformity with
accounting principles generally accepted in the United States of
America.
Effect of Restatement on Disclosure Controls
As disclosed in Item 8B herein, the Audit Committee of our Board of
Directors authorized us to amend and restate our financial statements
and other financial information for the year ended May 31, 2005, and
the quarters ended August 31, 2005, November 30, 2005, and February
28, 2006, as a result of a change in judgment regarding (i) the
accounting treatment for our previously outstanding convertible
debentures and (ii) our accounting treatment of our interest in
Phoenix Digital Solutions, LLC. The issue pertaining to the
convertible debentures also relates to the previous years ended May
31, 2004, 2003, 2002. See the Notes to the 2006 consolidated financial
statements for more information.
In connection with the restatement, and in light of the change in
judgment which gave rise to it, our Chief Executive Officer and our
Chief Financial Officer considered the effect of the error on the
adequacy of our disclosure controls and procedures as of the end of
the period covered by this Annual Report on Form 10-KSB for the year
ended May 31, 2006. The certifying officers determined that disclosure
controls and procedures were not effective as a consequence of the
material weaknesses described below.
A material weakness is a control deficiency, or combination of control
deficiencies, that results in more than a remote likelihood that a
material misstatement of the annual or interim financial statements
will not be prevented or detected. As a result of the restatements
described above, the following material weaknesses were identified in
the Company's assessment of the effectiveness of disclosure controls
and procedures as of May 31, 2006:
i) The Company did not maintain effective controls over the
identification of a variable conversion feature and put option
embedded within its convertible debt instruments and the determination
of the appropriate accounting treatment for those debt instruments.
ii) The Company did not maintain effective controls over the
accounting for its investment in Phoenix Digital, LLC and the
determination of the appropriate accounting treatment for the
investment.
As a result of these weaknesses, management has taken steps, including
the retention of new and additional accounting personnel, and
continues to monitor the controls and procedures, to ensure that the
errors will not occur again and that the Company's disclosure controls
and procedures are operating at the reasonable assurance level. In
addition, management has engaged our current auditors to perform a
re-audit of the fiscal years ended May 31, 2005, 2004, 2003 (including
the beginning balances for 2002).
We also plan to include in our amended filings disclosure relating to whether
our certifying officers have considered the effect of the error on the adequacy
of our disclosure controls and procedures as of the end of the years ended May
31, 2005, 2004, 2003 and 2002, and for the quarters ended August 31, 2005,
November 30, 2005 and February 28, 2006.
We hereby confirm that we are aware of our obligations under the
Securities Exchange Act of 1934 as they relate to the above referenced filings.
We acknowledge that:
o the Company is responsible for the adequacy and accuracy of the
disclosure in the filing;
o staff comments or changes to disclosure in response to staff comments do
not foreclose the Commission from taking any action with respect to the
filing; and
o the Company may not assert staff comments as a defense in any proceeding
initiated by the Commission or any person under the federal securities
laws of the United States.
Please do not hesitate to contact me at (760) 547-2700 with any questions
regarding this matter.
Sincerely,
/s/ Thomas J. Sweeney
- ---------------------------
Thomas J. Sweeney, Chief Financial Officer
PATRIOT SCIENTIFIC CORPORATION
cc: Otto E. Sorensen, Esq.
Carrie H. Darling, Esq.