Search the archive.

One of the main causes of the growth of patent offices’ delays is, naturally, the increasing number of patent applications filed every year. Not only is there an increase in the number of patent applications worldwide, but also a higher complexity in their content, which might cause each examination to take longer. It has also been argued that delays can be caused by structural problems at the patent offices because there are not enough examiners to handle so many applications. After all, patent offices do not have a sufficient budget, because of inefficiencies in the examination process, or because of a lack of adequate formation and expertise among the patent examiners.

Applicants might be interested in delaying the examination proceedings as well, particularly in those cases where they still do not know if the invention will be commercially viable. Having a patent application awaiting a decision from the patent office for an excessive period can have significant negative effects. These effects will certainly vary depending on each jurisdiction, on each industry, and, most importantly, on the magnitude of said delays.

“Those rights don’t mean anything if you don’t have a court where we can actually exercise those constitutional protections,” Mr. Raju said.

A spokesman for the San Francisco Superior Court said, “The court continues its commitment to justice by processing all cases as expeditiously as possible under the difficult circumstances presented by the pandemic.”

SAS Institute Inc v. Matal (argued 27 November 2017) (Supreme Court)

The Supreme Court is also considering whether the Patent Offce needs to consider all of the challenged patent claims during an IPR. Under the current practice, the Patent Offce 308 0 2018 Law Business Research Ltd United States may deny the IPR petition outright, grant the petition in its entirety, or grant review of only certain patent claims. If the Patent Offce institutes with respect only to certain patent claims, the other claims are not reviewed and that decision cannot be appealed. The Supreme Court is considering whether the AIA allows the Patent Offce the discretion to limit its review to certain claims. Should the Supreme Court require an 'all-or-nothing' approach for these petitions, patentees may face challenges on more claims than in the past. Likewise, while petitioners may have all of the claims they petitioned instituted, they would face the downside of estoppel in any district court litigation over all the claims too.

Enacted on 16 September 2011, the Leahy-Smith America Invents Act (AIA) was the most comprehensive patent reform legislation in the United States in over 60 years. Since enactment of the AIA, new legislation concerning intellectual property rights has been largely absent. By contrast, the courts have been quite active in shaping intellectual property law, including clarifring provisions of the AIA.

ii Court opinions

An immediate logistical challenge is that of accommodating a growing volume of patent applications as thinking machines, with their ability to learn and the harnessing of low cost, high power computing, generate increasing numbers of patentable inventions. In 2015 the USPTO received 629,647 patent applications and granted 325,979 patents, almost double the applications received and grants made in 2000.71 The volume of both patent applications and patents granted continues to grow, and an expansion of thinking machines in the process is likely to fuel even faster growth. Higher volumes of patent applications will negatively impact the speed of prosecution, the quality of screening and evaluation, and the ability of the USPTO to maintain and search prior art databases. In addition to volume, the nature and complexity of the inventions could change, and the process by which inventions are discovered will change. Differences in the invention process could create difficulties in applying existing USPTO patent application examination and search procedures to evaluate machine-generated inventions. Greater technical understanding may be required to evaluate inventions generated by computers that have massive computational abilities and databases to draw upon. Thinking machines may be capable of generating results that are beyond the understanding of the people charged with evaluating them, requiring careful thought about whether to add new subject matter categories and new metrics for determining patentability. The thinking machine paradigm will require both familiarity with the nature of the machine processes and the ability to understand, interpret, and compare the claimed results. Finally, administrative requirements such as the requirement that the application be made by the inventor and include an oath from the inventor that he or she is the original inventor, and the requirement on applicants to disclose all information material to patentability, will need to be rethought where the invention is generated by a machine rather than a human inventor.72

As this Note has demonstrated, patent law in the pharmaceutical space presents unique challenges. Interactions between patent terms, the FDA, the drug development process, and the need for quality medical solutions create a complex dynamic which leads to uncertainty. This uncertainty makes it difficult to discern between solutions which might be effective, and solutions which will spawn new challenges where they so intently sought to eliminate old ones. Although Hatch-Waxman was a success in many ways, in other ways it has proven to frustrate the purposes behind its enactment. The suggestions presented here are a sound starting point for alleviating some of the burden plaguing the pharmaceutical market due to the misuse and misapplication of the patent laws. While there is no simple way forward, “it is imperative that the law regulating pharmaceuticals be vigilantly analyzed.”188 It can “literally be a matter of life and death.”189

“Biden administration seeks to speed some asylum cases with new immigration docket • New Jersey Monitor“, https://newjerseymonitor.com/2024/05/16/biden-administration-seeks-to-speed-some-asylum-cases-with-new-immigration-docket/ published 5-16-2024, accessed 6-10-2024]

WASHINGTON — The Biden administration will start a new system Friday to hasten asylum claims for single adults, administration officials said Thursday.

Under the initiative announced Thursday, single adult migrants who've just entered the country and are going to five specific cities would have their cases overseen by a select group of judges with the aim of having them decided within 180 days.

That would mark a vastly quicker turnaround time than most cases in the country's overburdened immigration system, which can average four years from beginning to end. And by deciding the cases faster, authorities can more quickly remove people who don't qualify to stay.

Federal courts lack the discretion to dismiss lawsuits after determining that all the underlying claims are subject to mandatory arbitration agreements, the US Supreme Court held in an employment misclassification case that curtailed an appellate strategy to keep disputes from being arbitrated at all.

The justices on Thursday ruled unanimously that the Federal Arbitration Act requires district courts to put on hold lawsuits pending the outcome of private dispute resolution proceedings. The court noted that Section 3 of the FAA, which governs the enforcement of arbitration agreements, explicitly says that a district court referring a case to arbitration “shall on application of one of the parties stay the trial of the action until such arbitration has been had.”

March 21 (Reuters) - A bipartisan $1.2 trillion spending package unveiled by U.S. congressional leaders on Thursday would provide a modest increase in spending on the federal judiciary, but falls short of what the court system had sought.

Set for a vote in the Republican-controlled House of Representatives on Friday, the spending package would increase discretionary spending, opens new tab on the judiciary for the 2024 fiscal year to $8.63 billion, up 2% from 2023.

The attack on Ukraine focuses the mind on a most critical question for humanity: In our fast-changing world, what is democracy's future?

Certainly, a strong argument can be made that democratic governance is more important than ever as humanity faces at least two unprecedented challenges: the existential threats of the global climate crisis and a global pandemic. Attacks on civil and human rights continue as well—challenges that can only be met with democratic governance.

“The Waiting is the Hardest Part: Does Longer Patent Pendency Mean More Valuable Patents? “, https://www.mcneillbaur.com/The%20Waiting%20is%20the%20Hardest%20Part.%20Does%20Longer%20Patent%20Pendency%20Mean%20More%20Valuable%20Patents_Michael%20Ellenberger.pdf published 3-2019, accessed 6-11-2024]

The United States Patent and Trademark Office (USPTO) is one of the busiest patent offices in the world, fielding approximately 500,000 newly filed utility applications annually, and receiving more certified mail per day than any other single entity.1 At such a volume, the time from application filing to issuance is long. Owing to a myriad of factors, the average pendency period in the United States is 25.3 months and can be as long as twenty-eight months for “Networks, Multiplexing, Cable, and Security,” a burgeoning and crowded art space.2 Patent pendency is frustrating for the impatient but potentially lethal for the startup.3 A recent report from the UK Intellectual Property Office estimated that the “combined losses from each year of backlog in the U.S. Patent and Trademark Office, Japan Patent Office, and the European Patent Office [combined] costs the global economy over $10 billion a year.”4 While the pendency brings the costs of lost revenue, it does not necessarily impact the quality of the applications across four classifications: market value, signal, impact, and reputational considerations.

Robert F. Kennedy’s speech, which includes his reference to the oft-quoted “interesting times” curse, applies throughout history in many contexts and, indeed, with both negative and positive connotation. While he focused on the struggles for freedom and social justice, the requisite ascendancy of the individual over the state, and the institution and integration of those ideals for the greater good, he also promoted the goals of greater global unity, cooperation and communication, which were, and could be, achieved by advances in technology. And, as noted in the excerpt, he championed “the creative energy of men.”

Intellectual Property in “Interesting Times”

“The Waiting is the Hardest Part: Does Longer Patent Pendency Mean More Valuable Patents? “, https://www.mcneillbaur.com/The%20Waiting%20is%20the%20Hardest%20Part.%20Does%20Longer%20Patent%20Pendency%20Mean%20More%20Valuable%20Patents_Michael%20Ellenberger.pdf published 3-2019, accessed 6-11-2024]

The United States Patent and Trademark Office (USPTO) is one of the busiest patent offices in the world, fielding approximately 500,000 newly filed utility applications annually, and receiving more certified mail per day than any other single entity.1 At such a volume, the time from application filing to issuance is long. Owing to a myriad of factors, the average pendency period in the United States is 25.3 months and can be as long as twenty-eight months for “Networks, Multiplexing, Cable, and Security,” a burgeoning and crowded art space.2 Patent pendency is frustrating for the impatient but potentially lethal for the startup.3 A recent report from the UK Intellectual Property Office estimated that the “combined losses from each year of backlog in the U.S. Patent and Trademark Office, Japan Patent Office, and the European Patent Office [combined] costs the global economy over $10 billion a year.”4 While the pendency brings the costs of lost revenue, it does not necessarily impact the quality of the applications across four classifications: market value, signal, impact, and reputational considerations.

[Brenda M. "Preserving the Fruits of Labor: Impediments to University Inventor Mobility," Tennessee Law Review 89, no. 1 (Fall 2021): 1-66 heinonline gdi-tm]

This subsection describes how overly-broad limits on inventor mobility may be inconsistent with the legislative and financial underpinnings of universities, as well as their reputational aims. In terms of the legislative foundations of academic research policies, restricting inventor involvement in commercialization seems to contradict the main objectives of the Bayh-Dole Act, which will be described below.204 In addition, government funding of universities may affect how the public considers the role of universities in developing technology to advance social welfare.205 Further, unduly restricting inventor participation in development would seem to undermine the missions that universities strive to advance as well as their historical foundations.

Concerning the second dimension of criticism, Section 4 illustrates how the rejection of green capitalism overlooks promising approaches to surmounting the environmental crisis. On the one hand, we argue that in face of the given narrow time slot as well as the prevailing political strategies, it is more realistic and pragmatic to primarily assess the efficiency of market-oriented solutions. Even though in principle we take sufficiency to have the best effectiveness regarding the solution of ecological and social problems, we still do not count on people's willingness to live in greater moderation within due time. On the other hand, we therefore presume that there are no other suitable economic frame conditions for surmounting the crisis than those offered by the capitalist social order. This perspective is based on the assumption that innovations, which above all emanate from thriving economies (Wangler, 2013), are highly relevant for overcoming the environmental crisis. As growth, innovation, and the development of new industries are to be seen as directly related to the export sector as well as the utilisation of comparative advantages (Bathelt and Glückler, 2012), we therefore also strictly object to the concept of autonomy. Moreover, we take innovation and the aspects of growth, entrepreneurship, and democratic processes of negotiation related to it (cf. Gailing et al., 2013; Walter and Gutscher, 2013; Raven et al., 2016), to be essential for the implementation of regenerative energy systems and social welfare (Iversen, 2005; Nasirov et al., 2017). Our presumption that innovations occur more likely and more frequently within a capitalist, than in alternative social orders (e.g. Harris, 2013: socialist markets), is derived from Schumpeter's notion of competitive capitalism, which he distinctly sets apart from trustified capitalism. Competitive capitalism is about fertile destructive impulses emanating from enthusiastic entrepreneurs who are ready to take risks, and act solution-oriented. These impulses may revolutionise the economic process: “This process of Creative Destruction is the essential fact about capitalism” (Schumpeter, 2009). Based on Schumpeter's ‘theory of economic development’ (cf. Herzog and Honneth, 2016; Schumpeter, 1994; Schumpeter, 2009) – which, according to Marques (2008), represents the original idea of innovation-driven capitalism – we analyse capitalism's robustness to the downfall of fossil energy; moreover, we investigate its potential contributions to ecologic sustainability. Yet we want to go beyond Schumpeter's perspective, which fixes on the entrepreneur, and take a closer look at the role of state policy in Section 5. Our argument is that creative entrepreneurs and markets alone will not suffice to specifically and quickly initiate the change of the energy system driven by innovation. We state the thesis that an active role of the state is needed which relies on political continuity when it comes to promoting environmental innovation and creates stable institutional frame conditions. In a last step, we will show that during the deployment of regenerative energy systems, social aspects have hitherto been given too little attention by actors of state and politics and that national objectives were uncoupled from local contexts. To achieve a successful low-carbon transition, these deficits need to be corrected. In principle, this seems possible, as market-economically oriented regenerative energy systems have often been the result of open-minded democratic negotiations. In Section 6, the findings of the study will be summarised. 2. The crisis of fossil energies and capitalism Energy sources are a central element of humankind's materialistic history and elementary changes in the relevance of energy carriers have always led to extensive economic and societal transformations (Bridge et al., 2013). Exemplarily, the drastic increase in productivity during industrialisation cannot be explained without the revolutionary change of the energy system towards fossil fuels (Osterhammel, 2011). Ever since, economic growth is accompanied by an increasing consumption of finite energy resources and non-energetic primary materials (Altvater, 2005). Accordingly, questions of economic development must always be regarded in the context of the energy system, as well as the circulation of energetic and non-energetic crude materials within it (Meadows et al., 2004). Altvater (2007) takes the relationship between humans and nature to be crisis-laden because a limited stock of energy resources within the Earth's thin crust forms the basis of the present economic system. This limitation implied grave consequences for the global ecology. The apparently crisis-laden interrelation of nature and economy is also highlighted in ‘Anthropocene or Capitolocene?’ edited by Moore (2016), in which the impacts of capitalism are regarded as significant enough to be marked as their own geochronological era. The main point of criticism is capitalism's orientation to industrial scaling and quantitative growth (Mathews, 2011), which likely will end abruptly once Earth's limited capacities will have been depleted by the exponential growth of population and economy (Daly, 1995). Yet not only the finiteness of energy carriers, but also the accumulation of extreme meteorological incidents, mass mortality of species, and sea level rise represent impediments of stable economic growth (McCarthy, 2015). The scenarios concerning trends of the world's condition developed by the Club of Rome illustrate that keeping a high wealth level can only be accomplished if a radical change in societal attitude concerning the valuation of growth will take effect (Meadows et al., 2004). Stopping environmental destruction while maintaining the present economic system appears to be impossible, since fossil energy carriers provide globally acting companies with the opportunity to spatially separate production and consumption as well as to externalise the manifold ecological expenses (Chisholm, 1990). Bridge (2010) rates the heated debates about Peak Oil as ecologically motivated forebodings of a new energy order in which the modern industrial nations are going to free themselves of their dependence on oil. For Neomarxist groups, the end of the age of mineral oil even represents an apocalyptic turn of eras during which nature were going to take vengeance on the ecological arrogance of capitalism. According to Bettini and Karaliotas (2013), the narration of Peak Oil thereby attains a symbolism that reaches far beyond mathematical calculations of the scarcity of fossil energy sources, being extended to a general criticism of a system that is exclusively oriented on growth. McCarthy (2015) sees the chance of a post-fossil capitalism especially in the commodification of wind, sunlight, geothermal heat, and waves. This way, nature would again be introduced into the cycle of capital. Van den Bergh (2011) presumes that this may be a practicable approach, perceiving criticism of market economy and capitalism as too radical and warns of one-sidedly problematising growth without simultaneously pointing out realisable alternative ways. He therefore prefers the ‘a-growth-concept’, which assumes a neutral position on growth, trying to create social as well as ecological sustainability by means of pricing policy, environmental agreements, and education initiatives. The commodification of nature, however, is rejected by the degrowth movement, as the comparison of the Montreal Protocol, which is based on regulations (ozone) with the Kyoto Protocol based on trade had shown a greater effectiveness of regulative measures (Kallis, 2011). Concerning the market's capabilities, North (2010) additionally speaks of the neoliberal enthusiasts' mindless faith in technology, who were mistakenly convinced that creative destruction is sufficient to face the societal challenges posed by Peak Oil and the climate crisis. Sarkar and Kern (2008) limit the possibilities of the global community's further development to the two options ‘eco socialism’ or ‘barbarism’. This rhetoric stylises capitalism as the image of the enemy: on the one hand, it represents the cause of the global ecological crisis due to the exploitation of natural resources – and for that reason alone were not to be maintained (Daly, 2005) – while on the other hand not offering a suitable social framework for mastering the crisis (Kallis et al., 2009). Hence, the development of a symbiotic economy (Garcia-Olivares and Sole, 2015) rooted beyond obsessive economic growth (Buch-Hansen, 2018) is promoted. Renewable energies were apt to meet these requirements since they can be developed through collaborative bottom-up mechanisms on a communal level, therefore enabling the decentralisation and democratisation of energy supply (Rifkin, 2013). In fact, this may be an option. However, in the following, we want to demonstrate that capitalism is not only very robust to crises, but is also able to contribute to the solution of the environmental crisis. 3. Robustness of capitalism 3.1. Space-time compression We will now show that the possibility of increasing productivity does not end with the transition to a regenerative energy system, but only needs to be embedded into new logistic-infrastructural contexts. In this, we contradict Altvater (2007), Huber (2009) and North (2010), who claim that capitalism could expand only on the basis of fossil fuels, since, due to the global transportability of oil, gas, and coal, entrepreneurial actions are no longer bound to the local availability of energy resources, but range globally. Furthermore, the usage of fossil energy carriers is not subject to daily or seasonal fluctuations. Transportability and baseload capacity hence lead to space-time compression (Harvey, 1996), as products can be generated in ever shorter intervals of time. Following this logic, the limitation of the fossil resource basis inevitably brings about the end of the capitalistic system. It remains undisputed that energy flow within a solar-based energy system is hard to control (Georgescu-Roegen, 1971). Most forms of renewable energies are intermittent sources, whose contribution to the energy mix are subject to the rhythms of sun, wind, precipitation, and tides (Fares, 2015). Adapting energy production to demand, a fundamental prerequisite of continuous economic growth, thus becomes a major challenge. What Altvater (2007), Huber (2009) and North (2010) actually do not include in their considerations, are the numerous technological innovations for the stabilisation of regenerative energy systems. After all, with biomass and geothermal power, two energy carriers capable of providing base load are at hand (Matek and Gawell, 2015), which may, in the form of regenerative combined power plants, support the weather-dependent energy sources sun and wind (Palensky and Dietrich, 2011; Ramchurn et al., 2011). The numerous energy storage technologies are also important, albeit only few of these have reached industrial maturity. In principle, mechanical, chemical, electrical, or thermal kinds of storage are being discerned (Hadjipaschalis et al., 2009). Compressed air and pumped storage power plants with efficiency levels of up to 80% are especially promising (Anagnostopoulos and Papantonis, 2008). Research is also conducted on the conversion of surplus regenerative power into methane or hydrogen (Jensen et al., 2007), by which the bidirectional operation of the power and gas network is made possible, allowing for transportability as well as baseload capacity within large spatial units. Space-time availability may also be augmented by the development and capacity expansion of high-voltage transmission lines (Walter and Bosch, 2013). Harriss-White and Harriss (2007) have pointed out at an early point, that the existent grids, having been developed following a monopolistic logic, are outdated and incapable of integrating decentrally-produced electricity with strong fluctuations. These deficits, however, are successively being corrected. E.g., Germany's South, which is poor in wind but strong in terms of industry is being provided with direct access to the big wind energy off-shore potentials in the North as well as to the storage power plants in Scandinavia (cf. Fig. 1). The possibilities of intercontinental power transport from regenerative sources have been thoroughly investigated by DLR (2006) and Grossmann et al. (2014). Both energy storage and the development of the power grid thus will successively reverse the present space-time limitations of regenerative energy systems. The two domains, however, are not isolated from one another, but are coordinated via smart grids. Solomon and Krishna (2011) emphasise that smart grids are superbly suitable for the implementation of market-based approaches, so that an innovation-driven mass market for energy efficiency technologies could be anticipated. Smart grids also provide the possibility of no longer designing the mass production of renewable energy technologies on a fossil basis, but by the usage of renewable energy. While the production of the first generation of regenerative technologies was based on fossil energy, in future, the possibilities of energy storage, the almost unlimited energy potential of a solar-based economy, and the combination of both aspects through smart grids will ensure the flexible provision of regenerative energy at every production site without limits of time. Yet in order to optimise the flows of energy and material in smart grids, concepts of closed crude material cycles are needed, which, in the sense of the cradle-to-cradle approach (cf. Section 4), allow the reintroduction of used materials (e.g. old wind power plants made of renewable resources) to the biosphere. Thus, the problem of externalisation of ecological costs can be minimised. Summing up, the increase of productivity and stable economic growth within regenerative energy systems seems possible. Still, it remains to be emphasised that large-scale energy projects also entail negative social consequences. E.g., Yenneti et al. (2016) have shown that the Charanka solar park in Gujarat, India, was erected on areas that the local population's livelihood had depended on for decades. The refuse of access to these areas, as well as the inhabitants' successive dispossession through state measures thus are direct results of the Indian economy's ecological modernisation (Levien, 2013). In this context, Baka (2013) speaks of “energy dispossessions”, a phenomenon which has also been observed with large-scale wind energy parks (Avila, 2018; Cowell, 2010). The socio-material impact of economic modernisation on the local population, whose lives strongly depend on agricultural land use, are often insufficiently respected (Yenneti et al., 2016), so that the dubious impression was given that environmental protection and economic growth based on efficient technologies, competition, and state measures could go with one another without social side effects. Remarkably, the controversial energy mega-projects especially in the global South, are not the cause of the development of new power asymmetries and conflicts, but rather reproduce and harden long-standing social disparities and injustices (Avila, 2018). According to Bradley and Hedrén (2014), a low-carbon transition hence misses its aims if it is only about modernising the energy system without likewise transforming the underlying social structures. 3.2. Crisis as an element of capitalist social order We hold the view that the occurrence of crises in capitalism is not due to it being an ailing, doomed economic order; nor is it a proof of capitalism's ineptitude for meeting ecological challenges. Instead, we deem that crisis is a fundamental element of the capitalist social order that actually provides a chance for readjusting economic processes. Harvey (2011) explains that anything blocking the circulation and accumulation of capital may pose a threat to the capitalist system and induce a fundamental crisis. The finiteness of fossil fuels is a crisis of this kind (McCarthy, 2015). Altvater (2007) is convinced that capitalism will not be able to overcome this crisis; therefore, future technologic progress had to be embedded in a non-fossil, non-capitalist framework. Kallis (2011) also emphasises that the approach to a steady state (cf. Daly, 1991, Daly, 2005) will transform the institutional preconditions of property, work, banking, and distribution to such an extent that in the end, it will be impossible to still identify them as capitalistic. With regard to Kallis' doubts concerning the institutional robustness of capitalism, Schumpeter points out that precisely the ups and downs of industrial development, which are the outcomes of successful innovations' intensifying competition, enable progress (Herzog and Honneth, 2016). As crises therefore represent an immanent part of the capitalist system, an environmental and resources-related crisis caused by the capitalistic process does not provide sufficient evidence to suggest a possible downfall of the capitalistic social order. The crisis might even be taken as proof of an economic cycle, if it is regarded as a period of depression between the dwindling fossil and the emerging regenerative age. Böhm et al. (2012) and McCarthy (2015) confirm that capitalism is capable of overcoming even fundamental crises, actually using these as starting points of its further expansion. Concerning the environmental crisis, Harriss-White and Harriss (2007) also concede that the deployment of renewable energies holds the potential of founding a new form of capitalism that is characterised by a much lower degree of materialistic lavishness. Bettini and Karaliotas (2013) emphasise that from a neo-liberal point of view, the accusation of capitalism bringing about a resources-related and environmental crisis does not at all provoke self-doubts. Rather, it caused the profitable marketing of adequate approaches to solutions in the field of resource depletion and environmental impacts to move into economic focus. Even Altvater (2007) points out that the externalised effects of production and consumption on nature become relevant for companies once they jeopardise profitability and accumulation. In that case, environmental problems and their solutions can actually be made part of capitalist logic. Solomon and Krishna (2011) are convinced that in order to solve the environmental crisis, it were not even necessary to achieve further technologic breakthroughs, as the technologies needed for the remodeling of society towards energy efficiency were already mature and cost-efficient. Even if capitalism might be sufficiently robust, Kallis (2011) still takes the crisis as a chance to break up obstructive social and political lock-ins that have hitherto seemed unalterable and have lead into the crisis. Yet he does not regard the ability of social and political transformation to be inherent in the traits of market, but as a characteristic of a social order orientated towards degrowth. Certainly, Kallis is right in saying that the market is hard to control, making a concerted transformation towards sustainability difficult. Still his criticism only refers to that form of capitalism which Schumpeter characterised as trustified capitalism and which does lead to ecologically problematic lock-in effects. The criticism cannot, however, be applied to competitive capitalism, which generates those basic innovations giving rise to the revolutionary crises described as so fertile by Kallis (2011). Thus, an opportunity is provided for alternative social conditions to be brought about – but within the capitalist social order – and for substantiating these new conditions through further innovations. Innovations may emerge outside of competition and market economy, but will then lack the required frequency and force, as growth represents the most important incentive of innovation (Wangler, 2013). On the other hand, a continuous process of innovation again leads to growth, which may revolutionise the present social conditions, as Schumpeter states (Herzog and Honneth, 2016). Thereby, a new combination of the given means of production within new sites of production emerges, generating new goods, methods, and markets. Productive resources are applied to hitherto untested usages while being withdrawn from those usages they served before (Geels, 2011). What Kallis (2011) terms technological optimism with regard to the ecological innovative power of capitalism, is therefore technological realism in the context of Schumpeter's competitive capitalism. Without doubt, innovative boosts on the part of already established companies are also conceivable and may give rise to the possibility of maintaining trustified capitalism with its ecologically precarious structures. An example hereof is the innovation ‘Carbon Dioxide Capture and Storage’, by which the ecological impact of the emission intensive electrical conversion of coal is being reduced (Benson and Orr, 2008). Technological progress may hence stabilise the existent system of economy and policy that is accountable for the environmental crisis (Bettini and Karaliotas, 2013). In Schumpeter's view, however, the decisive economic order is competitive capitalism, which is characterised by the aggressive economic demeanour of new, innovative enterprises economically challenging the establishment (Herzog and Honneth, 2016). The start-ups of new companies, which are inseparably connected with the processes of innovation, withdraw production goods from the present capitalist system by underbidding, disturbing the former economic balance that is so destructive for nature. Competition is therefore essential for overcoming the environmental crisis. In that respect, the concept of ‘solidary economics’ and its precept of surmounting the allegedly ruthless principle of competition and emancipating oneself from the logic of the markets (Embshoff and Giegold, 2008), is counterproductive, as the renunciation of competition impedes the breakup of crusted economic structures, which thus continue to harm the environment. After all, the big energy providers' strategy was and is to hold on to the fossil-nuclear power plant pool for as long as possible, suppressing alternative concepts of energy supply (Gawel et al., 2012). A radical transformation of the energy system therefore cannot emerge from the existent structures, as Schumpeter assesses (Herzog and Honneth, 2016). Instead, innovative processes emerge outside of the old major companies until proceeding to attack the incumbent regime through the rededication of means of production (Geels, 2011). Innovative marketing strategies of small and middle scale businesses supplanting cumbersome large companies play an essential part especially in the field of renewable energies (Walsh, 2012). In this, competition is a decisive element that cannot easily be superseded. 4. Capabilities of green capitalism A competitive green capitalism develops great creativity by its high rate of innovation, which may also reinvent the relationship between humans and nature. We now want to exemplify how this might be brought about. Schumpeter holds the view that innovation is the result of the capitalistic entrepreneurial spirit, not the other way round (Herzog and Honneth, 2016). Technological and social progress hence are no independent variables materialising out of thin air, but arise from the logic of the capitalist process. Meadows et al. (2004) accept that innovations may relocate the limits of growth, making it possible to maintain the living standard by continuously reducing the consumption of crude materials and energy. However, one of the energy system's prevailing deficits is that depleted or not yet tapped resources are being (re-)obtained based on non-regenerative energy (Schwartzman, 2008), causing capitalistic production to be increasingly energetically inefficient (Murphy and Hall, 2011). Overcoming the energy crisis hence calls for the consideration of thermodynamic principles (Georgescu-Roegen, 1971, Georgescu-Roegen, 1986; Martinez-Alier, 1987). Harriss-White and Harriss (2007) see the deployment of renewable energies as a possibility of limiting the creation of entropy. Kaberger and Mansson (2001) have shown that innovative resources-saving material cycles may be possible and economical if they are based on the usage of the inexhaustible energy of irradiance. What is promising about this approach is that, due to research and development, the utilisation of solar energy becomes more and more efficient and lucrative (Schmid, 2016). Moreover, its inexhaustible potential allows for the exploitation of material resources even from deposits with extremely low crude material density. On a local level, the utilisation of solar energy may actually lead to a reduction of entropy (Ebeling et al., 1998; Kranert and Cord-Landwehr, 2010), as it is the case with the usage of waste heat of solar thermal power plants for the desalination of sea water (DLR, 2007). The integration of these capacities into smart grids and the associated remodeling of every production process to purely regenerative sources have been detailed in Section 3. We further argue that innovation surpasses conceivability. Even Harris (2010) sees a particularly high potential in unpredictable technological innovations to break through economic routine, thus encouraging further entrepreneurs in issuing their own innovations. Capitalism might thereby be provided with the chance to reduce its ecological exploitation. But innovation exceeds strictly technological aspects and may as well comprise social and institutional aspects (Arentsen and Bellekom, 2014). E.g., in the mobility sector, whose pollutant emissions have significantly contributed to the environmental crisis, innovations have led to new features of cargo and passenger transportation. This is illustrated by the example of car sharing as an innovative life style (Prettenthaler and Steininger, 1999) or bicycle-sharing schemes in urban areas (Midgley, 2011). Another representative case is the history of the ozone hole, which Meadows et al. (2004) describe as a history of civil success regarding the correction of a severe overshoot. Quite in the sense of Schumpeter, Meadows et al. (2004) name the ‘industry's creative heads’ as the crucial problem-solving determinant. Through the three innovative boosts ‘better insulation’, ‘reduced toxic substitute materials’, and ‘emission-free alternative substances’, it will be possible to rebuild the original density of the ozone layer by the mid-21st century. Remarkably, this is realised without abandoning the existent economic system. Furthermore, we argue that it is realistic to assume growth-oriented, competitive markets in the future, rather than socio-material conditions beyond them, which, as stated by Van den Bergh (2011) are completely uncertain as of now (e.g. Harris, 2013: socialist markets). We therefore hold the view that it is more pragmatic to design future mass markets in an eco-friendly way. Kallis (2011) rejects the possibility that the wonder of a dematerialised economy might occur, as improvements of efficiency were overcompensated by growing consumption. While dematerialisation may be tantamount to a wonder, researchers still do put effort into adjusting the materialised economy to ecological compatibility. One aspect is the thorough redefinition of nature protection, because nowadays, nature protection is reduced to the attempt of limiting the harmfulness of processes and products (Mulhall and Braungart, 2010). However, due to the potential creation of new mass markets for more eco-friendly and efficient processes or products, this strategy holds the danger of actually augmenting unwanted effects through rebound effects. In this regard, Alcott (2005) points to the Jevon's Paradox which says it is a great error to think that technologic innovations were going to reduce the consumption of resources. Polimeni et al. (2015) name the example of the Green Revolution: the remarkable increase of food production's area efficiency was not at all able to abate the problems of hunger and area consumption, as consequently, the population greatly increased. Likewise, a mass market of efficient and eco-friendly products would again lead to a massive amount of poison and waste, with disposed crude materials hardly being recycled. The ecological costs then would have to be externalised, which Sturm and Vogt (2011) regard as strong evidence of the failure of the market. The core problem hence lies in the fact that products are being produced exclusively for the technosphere (McDonough and Braungart, 2013). E.g., copper is almost universally applicable to and beneficial for technological systems, while in biological systems, this material is extremely poisonous. Thus, the aim must be to design products in a way that makes them equally usable in biosphere, i.e. subsequent to their technical usage. This calls for the development of a combined management of nutrients for techno- and biosphere. Human ways of living, the processes and products they are based on, may thereby be employed for the benefit of nature. The focus must therefore be put on those innovations that break up the present paradigm of environmental protection by realising products that create a useful material connection between techno- and biosphere. An example of this kind of creative destruction is the Austrian company Gugler, the first print shop worldwide that produces printing products free from harmful ingredients and exclusively with substances that can be biologically recycled (Gugler GmbH, 2018). E.g., the accruing sludge is returned to biosphere and the ash of burned printing products can be reused as a fertilizer. These conditions provide the possibility of designing economic activities to be ecologically compatible despite a high resource throughput.

[Christopher J. Jr., et al. "The Hidden Cost of University Patents." Berkeley Business Law Journal, vol. 21, no. 1, 2024, pp. 203-249. HeinOnline -tm]

But, alternatively defined, and in a Coasean sense, "markets" may mean the contracting that firms engage in-specifically to avoid having to bear the cost of vertical integration, where the latter may exceed the transaction cost of entering into contracts with outside parties. Here, universities, while broadly purposed, regularly enter into contracts with intermediaries, especially in the intellectual property sector. And this is because the cost of production of their intellectual property output exceeds the cost of contracting with intermediaries.101 This contracting function is the raison d'etre of technology transfer offices.

[Christopher J. Jr., et al. "The Hidden Cost of University Patents." Berkeley Business Law Journal, vol. 21, no. 1, 2024, pp. 203-249. HeinOnline -tm]

Additionally, there are concerns about the effect of the Bayh-Dole Act's incentive structure on consumers. Before the passage of the Bayh-Dole Act, the government often ceded its patent rights in publicly-funded research to the public domain, allowing any inventor to use the innovation produced from publicly­ funded research to create commercially valuable products. After the passage of the Bayh-Dole Act, the public has had to pay for innovation twice: first, when the government funds research at universities; and second, when-upon universities licensing their patents to commercial entities-the commercial entity with the university patent license charges monopolistic prices to consumers to generate profit from their license.

[Christopher J. Jr., et al. "The Hidden Cost of University Patents." Berkeley Business Law Journal, vol. 21, no. 1, 2024, pp. 203-249. HeinOnline -tm]

With a few exceptions, universities are non-profit entities, meaning that they have no duty to increase profitability to satisfy public shareholders. Rather, the wealth universities derive and control affords them the means to provide educational resources and pursue knowledge generation through research. Yet, universities are corporations of the non-profit variety. They have chartering instruments, and increasingly, their make-up structurally resembles the for-profit corporate model.

[Gerald, “How Bayh-Dole failed to protect faculty inventors (from university administrators),” Research Enterprise, 09/28/15, https://researchenterprise.org/2015/09/28/how-bayh-dole-failed-to-protect-faculty-inventors-from-university-administrators/, accessed 7/17/24, GDI-JCR]

But what has happened? Universities have adopted large corporation methods: demand ownership of everything, let management sort out what’s of value, hold everything else just in case. They justify this based first on the overturned notion that Bayh-Dole vested ownership of inventions with the employer. When that explanation failed, they argued that to comply with Bayh-Dole, they had to implement present assignments. Or, much more conveniently, if they had changed their patent policy to require assignment (following the argument that doing so conformed to federal law), they simply pointed to the policy without indicated that the policy was the way it was based on an argument that was simply false.