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Monday, October 22, 2007

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

Upon your encouragement I prepared the enclosed memorandum on the potential power of patents at the bargaining table; something I believe earnestly. We are where we are today, unfortunately, solely because industry has them and Labor does not.

I request three things, actually just one; 1) I want to empower UAW, 2) I request the opportunity to meet, explain and answer UAW questions on the matter, and 3) I want the opportunity to work non-stop to organize the patent program for UAW. Together, I want to save America from corporate pilferage.

He who controls the patent rights controls the work. Take GM’s health insurance deal in exchange for an equal say in GM’s patent rights (past and future). Job security for UAW is won. It is that simple. Nothing more needs be discussed. UAW is a true partner with GM in all business decisions forevermore.

Friday, October 19, 2007

UAW letter #1

Subject: Union Empowerment Using Intellectual Property

Application to General Motors Negotiations

Dear Mr. Segal:

GM has a $6B a year R&D and aggressive patent program intent on capturing its share of the upcoming improved fuel efficiency push. It currently owns 10,339 patents and has 337 patent applications in the works. That is a huge portfolio.

Surprisingly, GM is not leveraging this patent portfolio for billions of dollars in annual royalties as do many other international corporations. I have always suspected the automotive industry of passivity and collusion; to the detriment of the employees, America and its stockholders.

My plea for Mr. Gettelfinger as GM pressures for more and more Labor concessions is to ask for an equal ownership stake in GM’s intellectual property portfolio for Labor. It is grossly undervalued on their books and possibly under-appreciated by GM’s management. It is currently used as a shield only to protect their turf and not, as it should, also a sword to garner large new revenues from competitors. Labor should share in its patent portfolio ownership, powers and enforcement; forging a true marriage in this fight for mutual survival.

GM 2006 Annual Report

 
December 31, 2006                                                   Values in Millions
Amortizing intangible assets:                                       Amount                   Amortization
Patents and intellectual property rights                        $ 488                         $ 169  
 

Intellectual Property," GM has established aggressive near-, mid- and long-term

plans to develop and bring to market technologies designed to further improve

fuel efficiency, reduce emissions, and provide additional value and benefits to

our customers. These include enhancements to conventional internal combustion

engine technology such as Active Fuel Management, variable valve timing

systems, and six-speed automatic transmissions. In addition, GM currently

offers hybrid-electric buses that are capable of improving the fuel efficiency

of city buses by 25% to 50% and reducing some emissions by as much as 90%.

      

Research, Development and Intellectual

Property In 2006, GM incurred $6.6 billion in costs for research, manufacturing

engineering, product engineering, design, and development activities related

primarily to developing new products or services or improving existing products

or services, including activities related to vehicle emissions control,

improved fuel economy, and safety of drivers and passengers in GM vehicles.

Labor should not be asked by GM to continually grant concessions without affording Labor a say in affecting its future recovery. The muscle of America is its “know-how”, legalized in patent rights and founded in the Constitution. This “know-how” was created by the People for the People and corporate America has wrongly confiscated it and taken it overseas. Labor must bargain to retain a say in its “know-how”. As GM aggressively seeks to stake its patent claims in clean fuel technology, let Labor share that claim stake and thus secure their mutual future.

Wednesday, October 17, 2007

SUBCONTRACTOR CLAIMS SEMINAR

Why do COs happen?

  1. owner changes his mind
  2. differing site conditions or changed physical conditions
  3. poor designs frequently
  4. owner cut corners on geo-tech or physical site investigation
  5. CM incompetence
  6. Owner supplied material impact
  7. multiple primes interference
  8. shift of responsibility e.g. coordination clauses, etc

The Politics of Claims

  1. understanding who is responsible first
  2. submitting too few claims
  3. submitting too many claims
  4. keep it professional, if possible
  5. don’t fool yourself, every GC and owner expects them, on every job too
  6. strong communicative personalities usually prevail; keep the communications open

The Importance of Procedural Compliance

  1. pure contract language enforcement
  2. it is simply contract driven, though the contracts are frequently not simple at all
  3. Most courts and lawyers do know understand the business
  4. Summary Judgment issue of procedural compliance
  5. common conflicting or ambiguous contract provisions
  6. fixed contracts v. negotiable contracts
  7. industry whores v. fair experiences
  8. contracts are typically one sided; against the sub, in favor of the drafter
  9. everyone is free to make a bad bargain
  10. ‘fairness’ has little to do with anything

What General Contractors Think about Claims

  1. Who is the alleged responsible party? Owner, Architect, GC, sub, other
  2. sometimes a GC really needs a sub to submit their claim
  3. tone = professional
  4. repeat private client of GC
  5. when supportive e.g. shared impact, dependant impact
  6. when not supportive e.g. GC is responsible party, excessive
  7. best subs always submit claims when impacted
  8. sub or owner oriented?
  9. privity of contract
  10. will the GC still love you tomorrow?

Construction Managers and Why we Typically Hate them

  1. add no value to project
  2. need to justify their existence
  3. principle reason to be is to shield owner from claims
  4. more interference and incompetence than project facilitation
  5. paid whores
  6. obstruct communications with owner and problem solvers

What Owners Think about Claims

  1. public v. private work
  2. insufficient funding
  3. hire CMs to defend their interest
  4. big public owners expect them
  5. architects and engineers have become incompetent

Architects Wearing too Many Hats

  1. approving C.O. and pay estimates
  2. design defect C.O.
  3. who drafted the contract documents? And with what main intent?
  4. conflict of interest

Extortion

  1. to claim or get paid
  2. to become the lightening rod for abuse or tuck your tail and tale a beating
  3. when the CO pain leaves you no option but to fight back
  4. he who has the gold, extorts he who has not
  5. document it, even under threat of retaliation

Traps for the Unwary

1. monthly draw lien waivers

2. acceptance of final payment

3. no damage for delay provisions

4. risk shifting contract provisions i.e. weather, subsurface conditions,

5. impacted project and getting no answers; self help, mitigation of your own damages

6. failure to provide timely notice

Federal Fraudulent Claims Act

  1. federal funding
  2. gov’n negotiating leverage
  3. personal liability
  4. reasonableness test

Damages Assessment

  1. direct cost
  2. indirect cost
  3. consequential damages
  4. requirement to submit comprehensive damages v. reservation for future impacts when better known
  5. total cost
  6. modified total cost
  7. measured mile
  8. industry impact studies
  9. audits and open books
  10. multiple supporting proofs

Scheduling Proof

  1. delay damages
  2. LD defense
  3. concurrent delay
  4. critical path accountability
  5. absent control of the schedule maintenance
  6. when maintainer of schedule refuses to recognize schedule impacts
  7. P3 manipulation
  8. the wizard of Oz behind the curtain
  9. war of the experts

Impact proofs

  1. dated project photos
  2. professionally crafted correspondence
  3. project meeting minutes (contemporaneous)
  4. field diaries, watch out
  5. daily work reports

Claims Narrative

  1. professional tone
  2. introduction, as-bid expectation, as-impacted experience, damages and schedule proofs, request for adjustment of time and money

Claims v. Mechanics Liens v. ADR v. litigation

  1. why contractors hate attorneys
  2. why contractors should love their attorney
  3. how to work with an attorney so that the contractor usually wins
  4. an ounce of prevention is worth more than a pound of cure
  5. muscle plays; use the muscle
  6. ADR is preferred over court, any time
  7. sometimes you hit a crook and have no option but to fight

Conclusion

  1. the best subs always file claims
  2. use your attorney for prevention instead of cure
  3. document, document, document it
  4. stay professional at all times even in dispute
  5. fight back if abused; you really have no option

Monday, October 15, 2007




Church Mausoleums

Ms. Leigh Ann Jeter

Director of Marketing

Stewart Enterprises, Inc.

1333 S. Clearview Parkway

Jefferson, LA 70121

Subject: New Markets

Dear Ms. Jeter:

My firm represents a client in your industry that has developed a program to convert old church facilities into mausoleums and market them to its parishioners. Working from long lists of emotionally bound parishioners, they believe, will significantly accelerate the mausoleum sales effort. Old church facilities, many large and ornate, now exist in every region of the country and sell for a fraction of replacement value; some are simply irreplaceable in craftsmanship i.e. Catholic Dioceses. We are in process of patenting the business model, special use and property conversion design features of the program to protect it for our exclusive use.

We seek a joint development and marketing partner to promote the new market. Stewart Enterprises provides an ideal partner for a number of reasons; 1) your existing sales force of 1,000 commissioned salespeople, 2) your current presence in a number of strong markets, 3) our low debt of entry into new markets, 4) our lists of existing parishioner attraction to new market, 4) our low cost entry into new market regions of the country, and 5) our exclusively protected growth opportunity. Low cost entry into emotionally charged captive new markets that are exclusively claimed just for us should be attractive to Stewart Enterprises as you seek to expand and maintain low debt.

There are hundreds of these facilities on the market. Because of their special and limited use to others these facilities often sit on the market for years and eventually sell at deep discount by these motivated sellers. One aspect of our business model proposes to work with these motivated sellers, pre-sale to their parishioners, aggressively promote same from the pulpit, and afford the church a better price for their facility, albeit on creative terms tied to the sales success. This business model provides a low cost means, but for the commissioned pre-sale effort, of new market entry across the nation.

What follows is a small sampling of existing facilities now on the market. Please consider the new market potential of this program and how well it may work with Stewart Enterprises marketing. I will contact you shortly to discuss, however, feel free to contact me before if you have any questions.

Very truly,

CHURCH IN DUNWOODY GA

Dunwoody, GA
Church in the heart of Dunwoody GA. Sanctuary with cathedral ceiling and seating for approx...

Status:

Active

Price:

$1,650,000

Bldg. Size:

20,000 SF

Cap Rate:

N/A

Primary Type:

Religious Facility

Church of Pentecost
Chicago, IL
Former bank building currently used as a church. Over 10,000 square ft. on 3 floors plus a full basement. Sanctuary accomodates over 500 now and...

Status:

Active

Price:

$995,000

Bldg. Size:

10,500 SF

Cap Rate:

N/A

Primary Type:

Religious Facility

First Christ Scientist Church
Dayton, OH
Historic Church Building, built in 1924. Well maintained building in terrific location. Sanctuary seats about 800. Lots of multi-purpose space. ...

Status:

Active

Price:

$2,000,000

Bldg. Size:

16,000 SF

Cap Rate:

N/A

Primary Type:

Religious Facility

Church
Oakland, CA
Land and structure is currently being used as a church. Building was a movie theater prior to conversion to a church.

Status:

Active

Price:

$1,999,000

Bldg. Size:

8,555 SF

Cap Rate:

N/A

Primary Type:

Religious Facility

Preview Not Available


Religous/School Facility
Indianapolis, IN
Eagledale Baptist Church and Christian School is relocating to a new campus. This facility is in pristine condition and is an excellent opportunity...

Status:

Active

Price:

$2,500,000

Bldg. Size:

44,000 SF

Cap Rate:

N/A

Primary Type:

Religious Facility

Preview Not Available


3380 Walnut Grove Road
Sparta, TN
Beautiful Church facility located just off Highway 111 South in White County. Church features 17,000 square feet, licensed daycare center for up to...

Status:

Active

Price:

$419,000

Bldg. Size:

17,000 SF

Cap Rate:

N/A

Primary Type:

Religious Facility

Preview Not Available


Grace Church
Michigan City, IN
Wonderful old former school building now a church. Many updates and this building has many potential uses. Great in town location. 1.9 acres of land...

Status:

Active

Price:

$299,000

Bldg. Size:

14,000 SF

Cap Rate:

N/A

Primary Type:

Religious Facility

Preview Not Available


Church Property
Norcross, GA
Gorgeous and Beautiful Two Story Stone Building with 8,000SF Main Sanctuary on a 6.34 acres Lot. +250 seat Chapel upstairs and 4,000SF Fellowship...

Status:

Active

Price:

$1,700,000

Bldg. Size:

13,000 SF

Cap Rate:

N/A

Primary Type:

Religious Facility

Preview Not Available


Former Woodlawn Church of God Location
Clearwater, FL
Former Church-Worship Center located in South Clearwater.1.9 ACRE MOL site overall-.Divided into 2 Parcels-Multiple Buildings on site. Recent merger...

Status:

Active

Price:

$1,750,000

Bldg. Size:

17,000 SF

Cap Rate:

N/A

Primary Type:

Religious Facility

Preview Not Available


LaVerna Heights
Savannah, MO
LaVerna Heights community in Savannah Mo. is a one of a kind property in Nortwest Missouri. the sisters of Saint Francis have lived in this building...

Status:

Active

Price:

$1,360,000

Bldg. Size:

69,000 SF

Cap Rate:

N/A

Primary Type:

Religious Facility

Preview Not Available


South Post Oak Baptist Church
Houston, TX
Property sits on 4. 35 acres & consists of 2 buildings totaling 19, 500 gross square fooage. There is a total of 28 offices, 8 classrooms, 700 seat...

Status:

Active

Price:

$3,499,000

Bldg. Size:

19,500 SF

Cap Rate:

N/A

Primary Type:

Religious Facility

Preview Not Available


Cherry Hills Baptist Church
Springfield, IL
Formerly used as Cherry Hills Baptist Church, this property is in exceptional condition. A zoning change will be required for use other than a...

Status:

Active

Price:

$1,495,000

Bldg. Size:

27,000 SF

Cap Rate:

N/A

Primary Type:

Religious Facility

Preview Not Available


Tulsa Harvest Church
Tulsa, OK
9500 s.f. facility situated on 9.55 acres m/l. Sanctuary seats approximately 300, offices, ADA restrooms, and nursery in main building. Fellowship...

Status:

Active

Price:

$990,000

Bldg. Size:

9,550 SF

Cap Rate:

N/A

Primary Type:

Religious Facility

Preview Not Available


SYNAGOGUE/CHURCH
HIGH POINT, NC
WORSHIP SANCTUARY SINCE MID 60'S. LOCATED IN QUIET RESIDENTAIL NEIGHBORHOOD. ROOM FOR EXPANSION ON THE SIX+ ACRE PROPERTY.

Status:

Active

Price:

$1,600,000

Bldg. Size:

16,000 SF

Cap Rate:

N/A

Primary Type:

Religious Facility

Preview Not Available


Woodlawn Church
Panama city Beach, FL
Priced to Sell! Last chance to preserve the church before we must move forward with plans for our single family village. Formerly occupied by...

Status:

Active

Price:

$1,200,000

Bldg. Size:

16,000 SF

Cap Rate:

N/A

Primary Type:

Religious Facility

Preview Not Available


Church Complex
Houston, TX
MOTIVATED SELLER!!!! Three building church: Building 1 includes a 300 person sanctuary. Building 2 includes fellowship hall, kitchen and classrooms...

Status:

Active

Price:

$1,200,000

Bldg. Size:

19,000 SF

Cap Rate:

N/A

Primary Type:

Religious Facility