POTENTIAL POWER OF PATENTS AT THE BARGAINING TABLE

Introduction

Patent rights are founded in the U.S. Constitution and intended for We the People of America. In order to motivate America to greatness, our Founding Fathers rewarded inventors with exclusive powers (patent rights) to claim for a limited time the riches arising from their creative efforts. Soon thereafter, an evil legal fiction arose in the name of the “corporation”, clothing itself legally as if it were a person of equal rights and bargained away, in exchange for employment, the Peoples’ patent rights. After a century of abusive treatment of the People by these corporations Labor organized and has fought for yet another century in vain to regain equality.

These corporations took America’s greatness, its inventive rights, its patented riches and abandoned the People for cheap foreign labor. Corporations are ghostly fictions with no home, no family, no loyalty to country or its freedom bought with blood; the opposite in every way from the People. Labor is family, country, sweat and blood. Organized Labor can NEVER reclaim the America stolen from it by these ghostly fictions until Labor reclaims its right for the People of their exclusive powers (patent rights) to riches created by their work. Labor is one hundred years late demanding back its fair share of this most fundamental right; without which Labor has no power, and never will.

Patent Law

The patent law field is large, old and international; here is not the space to adequately expound. Suffice it to share a few fundamentals for those novices in the field.

• Founded in the Constitution; “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” U.S. Constitution Article 1 Section 8 Clause 8. (emphasis added)
• What is Patentable? “Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new or useful improvement thereof, may obtain a patent therefore, subject to the conditions and requirements of this title” 35 U.S.C. 101; “Anything under the sun that is made by man” Diamond v. Chakrabarty, 447 U.S. 303, 308-9 (1980).
• Patent Rights Gives Labor “...the right to exclude others from making, using, offering for sale, or selling the invention throughout the U.S. or importing the invention into the U.S…(and)…such grant shall be for a term beginning on the date of which the patent issues and ending 20 years from the date on which the application for the patent was filed…” 35 U.S.C. 154 (a)(1-2).
• “Courts may grant injunctions in accordance with the principles of equity to prevent the violation of any right secured by patent, on such terms as the court deems reasonable.” 35 U.S.C. 283. Injunctive relief is the heart of a patent’s power.

Auto Industry’s U.S. Patent Holdings

General Motors 10,352 patents

Ford Motor 4,806 patents

DiamlerChrysler 4,433 patents

Toyota 10,532 patents

Mazda 2,362 patents

Honda 12,269 patents

Nissan 8,995 patents

UAW 0 patents

Labor has lost its ability to effectively bargain having forfeited its voice (control) in the product.

Patent Resources Available to Labor

Ideally, Labor would have bargained long ago for an equal say in the exclusive patent rights arising from its workplace. Had Labor done so, the corporations could not have now gifted abroad the know-how of America’s Labor and spawned new generations of foreign competition that continue to pull America down. However, the big corporations do not control all U.S. patent rights, even in their own industries; far from it. Labor should pursue an aggressive (catch-up) policy of acquiring, bargaining for and forming strategic relationships with others in order to amass a powerhouse of their own patent rights from which to bargain. Such resources include;

1. Federal and State government holdings.

2. University holdings.

3. Small business holdings.

4. Foreign entity holdings.

5. Individual holdings.

6. International patents.

7. Bankruptcy assets.

8. Future Bargaining table negotiations for existing and future patent holdings.

9. Inventive membership new ideas.

Each of the above resources represents tens of thousands of patents that may apply to empower Labor. Each of these resources has its own special needs and interest whereby they might sell, license or team with Labor to the mutual benefit of both.

Potential Power of Patents at the Bargaining Table

Once Labor controls its own cache of patents which reads on their work product, enormous new powers are afforded Labor at the Bargaining Table, including;

1. Organizing: “the right to exclude others from making”. Exclusive rights.
2. Labor becomes a true partner with its corporate employer and has the ability to exclude the employer “from making, using, offering for sale” without the acquiescence of Labor; thus acquiring an equal voice in wages, benefits and all other matters.
3. Stop foreign outsourcing when the employer intends to import back into the U.S. using Labor’s “right to exclude others from…importing the invention into the U.S.”
4. Labor obtains a voice in corporate out-sourcing, joint ventures, divestitures and mergers by having the “right to exclude others from …selling the invention throughout the U.S.”
5. Stop or acquire a voice in foreign outsourcing if the patent rights are international and apply to other foreign markets.
6. New revenue generation whereby patent rights are leveraged for significant new royalty income in lieu of traded between friendly corporate competitors with no benefit to Labor.
7. Labor could benefit financially from foreign royalties derived from foreign use if Labor held patent rights.
8. International competition and import product can be held at bay when infringing on patent rights held by Labor; thus protecting U.S. Labor and markets.
9. Labor could share in and benefit from R&D such as G.M.’s investment in clean air technology and potential royalty proceeds both nationally and internationally.
10. Strategic relationships whereby Labor and industry co-invest in R&D for the development and protection of new marketshare.
11. Like Justice Brandeis envisioned a century ago; a true business marriage of Labor and Industry whereby each recognizes the mutual dependence on the other.
12. Organizing foreign markets using foreign patent rights that afford Labor exclusive rights; potential of global Labor expansion.
13. Control jurisdictional disputes or capture new scope using patent rights.
14. Political clout and influence as Labor provides politicians the means to curb corporate outsourcing and erosion of America’s standard of living and wages.
15. Labor should share in the financial benefit of the industrialization of Asia which is dependant on America’s know-how by controlling the patent rights relied on by Asia for its development.
16. Increase the term of the Bargain agreement by reliance on long term patent rights and their powers.
17. Offer to pick up the legal sword, both with and for industry, using patent rights (both domestic and foreign) to curb and control in foreign competition.
18. Take Labor to a new level of Bargaining sophistication in the global marketplace as Labor is afforded exclusive powers and injunctive powers through patent rights; as to who does what, when, where and how.
19. Reverse the reduction of influence of Labor in the market and instead provide a critical long term future to your membership by holding patent rights that define and protect their work. Build membership.
20. Use patent rights to expand Labor’s market in new technologies and product evolution.
21. Mitigate loss from automation by owning and benefiting from the patent rights to the new processes.
22. Develop new inter-Labor alliances using patent rights for increased Bargaining leverage.
23. Become the marketing arm to others in your industry using patent rights e.g. universities, government, foreign entities, etc.

Conclusion

Unless Labor acquires the patent rights to protect its membership and America’s work product the corporations will soon destroy both; gifting everything that is great in America to the cheapest foreign labor it can find. We are rapidly evolving into a world of corporations, without ties to people or national boundaries; where labor is but another expendable commodity in the corporate process. But it does have to be that way. Only Labor’s strong leadership can save us now. The key to America’s salvation resides in our U.S. Constitution’s vision of claiming patent rights for the People. Please, for our children’s sake, reclaim this vision for the People.

October 8, 2007

Stephen A. Brooks, JD, PE

(502) 896-2301