$118M in patent royalties in 2014 for UC alone and 86 new startups. Hard enough?
And why do I have the burden to prove patent monetization by states is bad policy?
Why isn't the burden on those who believe [with no proof] that innovation and new products will magically appear in the marketplace if inventions [not products] created with public funds are made freely available?
Mike, this is your little blog. So you can be as mean and nasty as you'd like. But if you can only tolerate sychophants who blow smoke up your backside and echo your worldview then you're a sad little man. Be mean, expect mean back. But that's a waste of everyone's time.
I take it you chose not follow the link I provided to the University of California Technology Transfer webpage that publishes the last 15 years of its annual reports. How about you do so, read a bit, and then conclude whether there's evidence for my assertions.
And then ask yourself what evidence you have to share to support your assertion that patents do not stimulate innovation and new, life-saving and life-enabling products.
Re-read my last: "Real money in patent license fees are collected and real businesses are formed based on patented inventions. Both dramatically benefit society."
There. All done. We've long past efficient discourse. Have a good day.
Real money in patent license fees are collected and real businesses are formed based on patented inventions. Both dramatically benefit society. That ain't theoretical. What's your proof that making all inventions created with public funds freely available is a better alternative?
The ignorance is yours. You can deny that patent protection stimulates innovation and promotes the creation of new products all you want. You have the right to be wrong.
MOST products are not patented. Yet still many companies make nonpatented brooms, bleach, lampshades, salt shakers, ink, paint, plastic etc. etc. etc. -- all of which, as a general matter, can lawfully be copied by competitors.
Research using public funds that generates information which merely tweaks or makes obvious improvements to already-existing inventions don't go through the patenting process. They're screened out as economically not useful. Whoever wants to commercially use that information may do so.
But research using public funds that generates patentable inventions is economically useful because those patents can be exploited to recoup the public's investment. Why is this not obvious to you?
We have a demonstrable and steady flow into California state goverment coffers of hundreds of millions of dollars collected from patent licensing that would not be collected if [as you prefer] the publicly-funded inventions were not patented and licensed. We have hundreds of start-up companies being formed in California in order to commercially exploit those inventions -- companies that hire taxpayers and who then pay taxes.
What do you have in support of your scheme to dedicate to the public inventions created using taxpayer funds and what do you have to prove that those inventions would even be converted into products [requiring regulatory approval, branding, marketing, manufacturing, distribution, etc.] without offering private enterprise the exclusive right to exploit the inventions? Nothing.
Hmm. "The only cases when there's even any possible net benefit to taxpayers as a whole is when the patent is licensed to a foreign company."
Yeah, that's completely false. And silly.
Public funds dedicated to research fosters new information and inventions. Turning both into useable products takes more money -- private money which demands a return on investment. This is Economics 101.
Inventions aren't used. Products are used. Why would a private company spend its resources to turn an invention into a product if any other could freely do so as well? None will. Which is why patent exclusivity is necessary.
The classic definition is the right to possess and use something to the exclusion of others.
You really need to get your head around the fact that intangible property rights have been part of Western law since at least 550 A.D. when codified in the Justinian Code [Book II, Titles I(33),(34) & II(2),(3) & IV & XX(22)].
The right to inherit, the right of continued possession of land, the right to recieve the benefit of a bargain, the right to have your product on an eye-level retail store shelf instead of the bottom shelf. LOTS of rights are intangible. And their all intangible. They exist only in the ether.
Your hurdle too high is to envision "property" as including the intangible end-products of inventive and creative mental processes. Why? Why is my poem any less "property" than your contractual right to remain in your rented apartment or your future possessory interest in land?
No, the state government does not recoup its invention creation costs "from members of the public." It recoups those costs from companies [worldwide] who chose to license the patented technology to create products the public needs.
The University of California collected $118M in patent licensing fees in 2014 alone. And spun off 86 startups [all who will employ people and pay taxes]. University technology transfer throughout the country -- from public schools alone -- is very lucrative and beneficial to the economics of our society. Those benefits are just rewards from taxpayer investment in public universities.
States own many thousands of patents on inventions created with taxpayer funds [and make millions in licensing fees].
States -- and cities and the federal goverment -- own thousands of trademarks because they're all marketplace participants [remember "Got Milk?].
Yet States shouldn't own the copyrights in the works their employees create at taxpayer's expense? Maybe not. But the idea should not be dismissed out of hand.
Copyright automatically attaches to every computer program every City and State directly creates and all created with City, State and Federal taxpayer funds. Should they all be public domain? Nope. Not only would that eliminate the government's ability to recoup the creation expense by licensing or sell the program, it would be difficult to persuade a vendor to create any if its work product had to be disclosed to everyone [including competitors].
Whether right or not, fair use is an affirmative defense -- imposing the burden of proof on the alleged infringer – because the Supreme Court has repeatedly noted that it’s an affirmative defense. Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 561 (1985) (“The drafters resisted pressures from special interest groups to create presumptive categories of fair use, but structured the provision as an affirmative defense requiring a case-by-case analysis.”); Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 590 (1994) (“Since fair use is an affirmative defense, its proponent would have difficulty carrying the burden of demonstrating fair use without favorable evidence about relevant markets.”).
Until the Supreme Court holds otherwise, alleged infringers will bear the burden to prove their use is fair. A good article discussing the origin of fair use as an affirmative defense and the burden of proof is here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1340128
I don’t think fair use is an affirmative defense because it’s assertion is NOT the admission of a wrongdoing that’s justified by a privilege or excuse. See 17 U.S.C. 107 (“ … the fair use of a copyrighted work … is not an infringement of copyright.”). I think fair use is a “denial” defense – that is, it denies any wrongdoing. But I don't have a say in the matter. A very good explanation of the difference is here: http://www.litigationcontrolpanel.com/CAD/Ch1.pdf
The fair use burden shifting is mitigated somewhat by the even-handed grant of attorneys’ fee awards to successful fair users. One such ruling is here: https://www.scribd.com/doc/75510815/Seltzer-v-Green-Day-Fee-Award
Moreover, one influential judge has concluded that before sending a DMCA takedown notice a copyright owner MUST consider whether the alleged infringer has a fair use right to use the allegedly infringing material. Lenz v. Universal Music Corp., No. 5:07-cv-03783-JF, 2013 WL 271673 (N.D. Cal. Jan. 24, 2013) (“The Court concludes that at minimum, for the reasons discussed at length in its prior order, see Lenz, 572 F. Supp. 2d at 1154-56, a copyright owner must make at least an initial assessment as to whether the fair use doctrine applies to the use in question in order to make a good faith representation that the use is not ‘authorized by law.’"). The ruling is here: https://scholar.google.com/scholar_case?case=16651379811470109098
The judge should have granted the motion to dismiss. He failed in his legal analysis by skipping the threshold issue of whether the allegedly infringing mark was being used in commerce AS A MARK. Only if such use occurs can there be, as a matter of law, infringement of the mark. The judge's analysis on the merits began by considering whether Getty's "use" of the mark was a "fair use." But that presupposes that Getty is making a trademark use of the mark at all. It is not. This action, as a matter of law, is unsupportable and should have been dismissed. Regardless of the facts alleged in the complaint.
Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
Both of you either need to prove your position or just be quiet.
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You: "The only cases when there's even any possible net benefit to taxpayers as a whole is when the patent is licensed to a foreign company."
Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
$118M in patent royalties in 2014 for UC alone and 86 new startups. Hard enough?
And why do I have the burden to prove patent monetization by states is bad policy?
Why isn't the burden on those who believe [with no proof] that innovation and new products will magically appear in the marketplace if inventions [not products] created with public funds are made freely available?
Re: Re: Re: Re: Re: Re: Re: Re:
Mike, this is your little blog. So you can be as mean and nasty as you'd like. But if you can only tolerate sychophants who blow smoke up your backside and echo your worldview then you're a sad little man. Be mean, expect mean back. But that's a waste of everyone's time.
Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
I take it you chose not follow the link I provided to the University of California Technology Transfer webpage that publishes the last 15 years of its annual reports. How about you do so, read a bit, and then conclude whether there's evidence for my assertions.
And then ask yourself what evidence you have to share to support your assertion that patents do not stimulate innovation and new, life-saving and life-enabling products.
Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
Re-read my last: "Real money in patent license fees are collected and real businesses are formed based on patented inventions. Both dramatically benefit society."
There. All done. We've long past efficient discourse. Have a good day.
Re: Re: Re: Re: Re: Re: Re: Re:
Real money in patent license fees are collected and real businesses are formed based on patented inventions. Both dramatically benefit society. That ain't theoretical. What's your proof that making all inventions created with public funds freely available is a better alternative?
Re: Re: Re: Re: Re: Re:
The ignorance is yours. You can deny that patent protection stimulates innovation and promotes the creation of new products all you want. You have the right to be wrong.
Re: Re: Re: Re: Re: Re:
MOST products are not patented. Yet still many companies make nonpatented brooms, bleach, lampshades, salt shakers, ink, paint, plastic etc. etc. etc. -- all of which, as a general matter, can lawfully be copied by competitors.
Research using public funds that generates information which merely tweaks or makes obvious improvements to already-existing inventions don't go through the patenting process. They're screened out as economically not useful. Whoever wants to commercially use that information may do so.
But research using public funds that generates patentable inventions is economically useful because those patents can be exploited to recoup the public's investment. Why is this not obvious to you?
Re: Re: Re: Re:
Time to brush up on your property law.
Re: Re: Re: Re:
I have no burden to demonstrate anything.
We have a demonstrable and steady flow into California state goverment coffers of hundreds of millions of dollars collected from patent licensing that would not be collected if [as you prefer] the publicly-funded inventions were not patented and licensed. We have hundreds of start-up companies being formed in California in order to commercially exploit those inventions -- companies that hire taxpayers and who then pay taxes.
What do you have in support of your scheme to dedicate to the public inventions created using taxpayer funds and what do you have to prove that those inventions would even be converted into products [requiring regulatory approval, branding, marketing, manufacturing, distribution, etc.] without offering private enterprise the exclusive right to exploit the inventions? Nothing.
Re: Re: Re: Re:
Hmm. "The only cases when there's even any possible net benefit to taxpayers as a whole is when the patent is licensed to a foreign company."
Yeah, that's completely false. And silly.
Public funds dedicated to research fosters new information and inventions. Turning both into useable products takes more money -- private money which demands a return on investment. This is Economics 101.
Re: Re: Re: Re:
Inventions aren't used. Products are used. Why would a private company spend its resources to turn an invention into a product if any other could freely do so as well? None will. Which is why patent exclusivity is necessary.
Re: Re:
Then what is "property"?
The classic definition is the right to possess and use something to the exclusion of others.
You really need to get your head around the fact that intangible property rights have been part of Western law since at least 550 A.D. when codified in the Justinian Code [Book II, Titles I(33),(34) & II(2),(3) & IV & XX(22)].
The right to inherit, the right of continued possession of land, the right to recieve the benefit of a bargain, the right to have your product on an eye-level retail store shelf instead of the bottom shelf. LOTS of rights are intangible. And their all intangible. They exist only in the ether.
Your hurdle too high is to envision "property" as including the intangible end-products of inventive and creative mental processes. Why? Why is my poem any less "property" than your contractual right to remain in your rented apartment or your future possessory interest in land?
Re: Re:
No, the state government does not recoup its invention creation costs "from members of the public." It recoups those costs from companies [worldwide] who chose to license the patented technology to create products the public needs.
Win [new invention], Win [state collects patent license fee], Win [public gets new product].
Re: Re:
The University of California collected $118M in patent licensing fees in 2014 alone. And spun off 86 startups [all who will employ people and pay taxes]. University technology transfer throughout the country -- from public schools alone -- is very lucrative and beneficial to the economics of our society. Those benefits are just rewards from taxpayer investment in public universities.
http://www.ucop.edu/innovation-alliances-services/innovation/innovation-impact/technology-commercialization-report.html
States own many thousands of patents on inventions created with taxpayer funds [and make millions in licensing fees].
States -- and cities and the federal goverment -- own thousands of trademarks because they're all marketplace participants [remember "Got Milk?].
Yet States shouldn't own the copyrights in the works their employees create at taxpayer's expense? Maybe not. But the idea should not be dismissed out of hand.
Copyright automatically attaches to every computer program every City and State directly creates and all created with City, State and Federal taxpayer funds. Should they all be public domain? Nope. Not only would that eliminate the government's ability to recoup the creation expense by licensing or sell the program, it would be difficult to persuade a vendor to create any if its work product had to be disclosed to everyone [including competitors].
Re: Re: Re:
Whether right or not, fair use is an affirmative defense -- imposing the burden of proof on the alleged infringer – because the Supreme Court has repeatedly noted that it’s an affirmative defense. Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 561 (1985) (“The drafters resisted pressures from special interest groups to create presumptive categories of fair use, but structured the provision as an affirmative defense requiring a case-by-case analysis.”); Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 590 (1994) (“Since fair use is an affirmative defense, its proponent would have difficulty carrying the burden of demonstrating fair use without favorable evidence about relevant markets.”).
Until the Supreme Court holds otherwise, alleged infringers will bear the burden to prove their use is fair. A good article discussing the origin of fair use as an affirmative defense and the burden of proof is here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1340128
I don’t think fair use is an affirmative defense because it’s assertion is NOT the admission of a wrongdoing that’s justified by a privilege or excuse. See 17 U.S.C. 107 (“ … the fair use of a copyrighted work … is not an infringement of copyright.”). I think fair use is a “denial” defense – that is, it denies any wrongdoing. But I don't have a say in the matter. A very good explanation of the difference is here: http://www.litigationcontrolpanel.com/CAD/Ch1.pdf
The fair use burden shifting is mitigated somewhat by the even-handed grant of attorneys’ fee awards to successful fair users. One such ruling is here: https://www.scribd.com/doc/75510815/Seltzer-v-Green-Day-Fee-Award
Moreover, one influential judge has concluded that before sending a DMCA takedown notice a copyright owner MUST consider whether the alleged infringer has a fair use right to use the allegedly infringing material. Lenz v. Universal Music Corp., No. 5:07-cv-03783-JF, 2013 WL 271673 (N.D. Cal. Jan. 24, 2013) (“The Court concludes that at minimum, for the reasons discussed at length in its prior order, see Lenz, 572 F. Supp. 2d at 1154-56, a copyright owner must make at least an initial assessment as to whether the fair use doctrine applies to the use in question in order to make a good faith representation that the use is not ‘authorized by law.’"). The ruling is here: https://scholar.google.com/scholar_case?case=16651379811470109098
Re: Motion to Dismiss vs. Summary Judgment
The judge should have granted the motion to dismiss. He failed in his legal analysis by skipping the threshold issue of whether the allegedly infringing mark was being used in commerce AS A MARK. Only if such use occurs can there be, as a matter of law, infringement of the mark. The judge's analysis on the merits began by considering whether Getty's "use" of the mark was a "fair use." But that presupposes that Getty is making a trademark use of the mark at all. It is not. This action, as a matter of law, is unsupportable and should have been dismissed. Regardless of the facts alleged in the complaint.
More critique
Attorney Lara Pearson has critiqued the report as well. See
http://goo.gl/gc0EN .