DA’s

Privatization DA

Since the Covid pandemic mindsets have been shifting. We are on track to achieve
decreased privatization and consumption in our economy.
Stuart ’21 [Diana; 2021; Associate Professor in the Sustainable Communities Program and in the
School of Earth and Sustainability at Northern Arizona University; Ryan Gunderson; Assistant Professor
of Sociology and Social Justice Studies in the Department of Sociology and Gerontology and Affiliate of
the Institute for the Environment and Sustainability at Miami University; Brian Petersen; Associate
Professor in the Geography, Planning and Recreation Department at Northern Arizona University; The
Degrowth Alternative, A Path to Address our Environmental Crisis? p. 67-68]

Social tipping points may be reached due to unexpected events. We are writing this book in the spring of 2020
during the Covid-19 pandemic. The pandemic has further exposed the flaws of the capitalist system and
revealed mass social vulnerability. Policies in line with a degrowth transition are being increasingly
discussed as the pandemic shifts the political dialogue. For example, even the editorial board of the moderate London-based
newspaper The Financial Times proposed “radical reforms” in a piece published on April 4 :Radical reforms—
reversing the prevailing policy direction of the last four decades—will need to be put on the table . . .
Policies until recently considered eccentric, such as basic income and wealth taxes, will have to be in
the mix. In a newspaper publication, Dutch academics called for a radical economic transition in response to Covid-19 and
specifically to implement the following strategies (Feola 2020): 1. a move away from “development” focused on aggregate GDP
growth; 2. an economic framework focused on redistribution; 3. transformation towards regenerative agriculture; 4. reduction of
consumption and travel; 5. debt cancellation. In addition, the Covid-19 pandemic is providing an opportunity to see how
individuals and institutions could adapt to a degrowth transition. To be clear, degrowth would be a planned economic
contraction with social safety nets in place, as opposed to the current response in the US: a tremendously
harmful recession with, despite the chaos, new neoliberal pseudo-stimulus packages to redistribute
wealth upwards. However, the Covid-19 pandemic illustrates that it is possible for societies to
quickly shift to lower-carbon lifestyles : working less, consuming less, and traveling less. It also reveals
how policies like work sharing (e.g., Germany’s response), wealth taxes, and basic income—or a similar program such
as governments subsidizing salaries for workers to stay home (e.g., Denmark’s response)—could support a transition.
The pandemic also further illustrates the many flaws of a system prioritizing economic growth, reinforcing
the need for system change and a more just, post-growth alternative Moving beyond debating if the current system should
change, we should be debating specifically how we should change our social and economic system. In this book, we have examined
degrowth as a pos-sible path forward to effectively and justly address our environmental crisis. As more people acknowledge that
change is necessary, degrowth may become more widely discussed and considered. As this happens,
the relationships between capitalism, economic growth, and our environmental crisis need to be made clear. Moving forward, we
recommend increasing opportunities for deeply democratic and deliberative processes where
groups of citizens can learn about, discuss, and debate the possible options for a new system. Examples such as participatory
budgeting and citizens assemblies provide models of how peoplecan make informed choices about their own
future . The degrowth ideas presented here, along with many others, could be made accessible and available as options. As
climate change and biodiversity loss accelerate, we go deeper into a state of crisis: a state where the current
system can no longer be maintained . The environmental crisis is becoming more severe and will affect
human lives more obviously each year. As these impacts are experienced unequally, and as some benefit while many more
suf-fer, the immorality of the situation will become ever clearer. When we finally reach a social tipping
point, we will be in a much stronger position to make choices if we have already identified what should
be prioritized, examined the alternatives, collaborated democratically to set goals, and evaluated
pathways for positive social change. Ideas from degrowth could be included in this process and help us to define the
parameters for a new set of social, ecological, and economic relations.

The plan strengthens exploitative monopolies by expanding the reach of privatization

João Romeiro Hermeto 2020, Visiting Scholar at The University of Pavia (Italy) in the Department of
Humanistic Studies, PhD in philosophy from the Witten/Herdecke University, Germany, 2020, “Towards
a critique on intellectual property,” Revista Katálysis, Vol. 23, Issue 3, pp. 399–408,
[Link]

The state appears as the perfect expression of this social transformation. It alienates only to be itself alienated. Its monopoly of
violence appears not as the so-called state monopoly of violence but rather it mediates the violence of the capitalist dominant
class. The state does not mediate conflicts in general but rather specific domination. With its emergence, private property, not as
individual possession but rather as separation of the means of production, creates novel forms of social tensions. Insofar, it creates an

immediate separation between producer and his means of doing, an external mediation – namely the bourgeoisie state – becomes, therefore, a

necessity; otherwise, the producer would directly confront the violence imposed upon his life, his productive
life, he would immediately antagonize the owner of the means of production. The owner, who realizes his existence and freedom in and through private

property, is the person. Marx, however, criticizes the notion that the person is the real actualization of the idea: Hegel describes as abstract the very species-
forms [Gattungsgestaltungen] in which the real person realizes his content in actual existence, in which he objectifies himself and abandons the abstraction of the
‘person as such’. Instead of recognizing this realization of the person as the most concrete of facts, the
state is allegedly distinguished by the fact that in it ‘the
moment of the concept’, ‘individuality’ achieves a mystical ‘existence’. Thus the rational is seen to consist not in the realization of the reason of the
real person but in the realization of the moments of the abstract concept. (Marx, 1992, pp. 84-85). Marx is fully aware that this movement

consists in the concretization of relations of power. Insofar, the Hegelian notion that in the property the will asserts itself as free by
the cancellation of the arbitrariness of just being a possibility carries in-itself the embryo that cancels Hegel’s notion of intellectual property as indefinitely mutable.
As thestate guarantee property as private property, the law can also impose itself restricting the
mutability of intellectual property under patent law and equivalents: as reality proves. Property itself is
mutable, a historical product of cultural transformation, an ever-transforming social relation. Land is not property or an acre in-itself, it becomes
depending on the social relations. The transformation of land by social relations, or its (theoretically infinite) divisions, constantly
creates new social relations and, hence, new contents for the property. If the historical arbitrariness of the law opens the
precedent for actualizing relations of power, which in its core contradicts its existence, since law in-itself presupposes the cancellation of arbitrariness, then the law
can also prevent the mutability of intellectual property and reframe it only with a determined framework of given relations of power. However, the law can never
be law in-itself and for-itself, law cannot be an independent, self-realizing idea, on the contrary,the law is always a product of historical
social relations. As such, law is subjected to the singular and collective wants, desires, influences,
contradictions, arbitrariness, in summary, to the influence of human agency. From its outset law can never represent the very
thing that fundaments its existence: being impersonal, objective; instead it is contradictory, arbitrary and unstable. There is no such thing as the

rule of the law but rather the rule of the ruling class, who instrumentalize, weaponize the law to
justify its dominance. Control over intellectual property intends to create an incentive for competition
and, hence, an incentive for development, it is, however, a contradiction in-itself, because, if intellectual property, as Hegel sees it, is unique, then
the only thing that prevents the nature of intellectual property as a monopoly in-itself to become a monopoly for it- self is the absence of law (such as patent,
copyrights etc.). Law claims a general benefit of incentivizing competition but in practice, it abolishes it by
protecting/creating monopolies. While law actualizes relations of power, monopolization of intellectual property is in-itself not the problem that
emerges with the law. Its contradictory character lies in deeper social relations. As Adam Smith and Karl Marx well noticed, with capitalism emerges an

overwhelming accentuation of the socialization of labour (Marx, 1962; Smith, 2012). Marx goes beyond Smith and identifies in
capitalist production the immanent contradiction between cooperation and competition. With the development of forces of production labour becomes
increasingly more cooperative with the division of labour, also, science
becomes an integrant part of the production. Therefore,
the hitherto historical necessity of the existence of private property of production to go beyond both
slave-based and feudal societies becomes an impediment for the production and development of social
relations. If the relations among (a) producers, (b) producers and consumers and (c) consumers are not immediately determined in their relations but by an
external being outside of those spheres – the owner of the means of production –, then the developments of production acquire two existences. First, the owner
imposes a phantasmagorical relation to the other dimensions, since the drive of production (teleological setting) subordinates all social relations to the sphere of
profit, which appears as an end-in-itself. Second, the social relations, outside from the determination of production of the owner, are estranged from their daily
practices and received it as an imposition. The law guarantees such imposition. The real social needs and wants lose, hence, relevance, on the contrary, they appear
as an impediment to profit. This capitalist
logic incentives neither the production, nor the development, but rather
the augmentation of the accumulation of capital. Private property as a barrier to the development
manifests it-self not only in the disintegration of the planet or in inequality but also more
fundamentally in the very incentives of production, which under imperialistic, financial capitalism tend
to cease under monopolistic capitalism (see Lenin, 1971), for instance, the long practices of planned obsolescence, which also reveal the
power and coercion that the capital imposes on society while proclaiming freedom, competition and development (see Pope, 2017). The being
of intellectual property as intellectual private property becomes a non-being. If copying, changing, modifying is an act of creation of new
intellectual property, then selling it would seem impractical since every appropriation is simultaneously a new creation. Nevertheless, the law
guarantees this contradictory movement. “Intellectual property serves to commodify knowledge” (Mueller, 2019, p. 20), and so, transforming it
in its negation appears pre-condition for its existence in capitalist society: philosophically, it becomes an insoluble paradox; political-
economically, it expresses social tensions, contradictions and domination. On the next section – second part – this ontological problem should
become more feasible.

Exploitative capitalist practices are unsustainable and guarantees extinction through

climate loss.
Fatima Shahzad 22, Pakistani Communist Organizer, 8/6/22, “Climate Crisis: Socialism Or Extinction?”
[Link]

Today we are witnessing the process whereby the very conditions that sustain life are being destroyed
amid climate and environmental catastrophe as the result of the gravest crisis of capitalist imperialism.
Our times echo Lenin’s words: “History has now confronted us with an immediate task which is the most
revolutionary of all immediate tasks confronting the masses of every country”. First, we must identify
the logic upon which capitalism operates, namely, infinite growth on a planet with finite resources, the
exploitation of labour to generate maximum profits and of course, private ownership over the means
of production and distribution. Secondly, we must understand the development of global capitalism in sowing the seeds of the
climate crisis and how we currently see it unfolding. The initial mercantile phase was focused on the transition from feudalism to
capitalism in Europe, in gaining control of domestic and foreign trade including the search for markets abroad resulting in colonialism. Then came the Industrial
Revolution which was defined by the formation of factories, mills and railways etc. with sharp increase in production which was greatly facilitated by the extraction
of raw materials and cheap or even slave labour from the colonies. It is in this era where we can trace rises in carbon emissions as the economy became dependent
upon the consumption of fossil fuels. The preceding stages laid the groundwork for imperialism, under which we live today, where multinationals
and large monopolies from Global North countries that became rich due to these capitalist and colonial relations, control the global economy
with institutions like the IMF and World Bank to maintain their hegemony and continued exploitation and looting of resources of the Global
South. Therefore, despite the fact that developed countries overwhelmingly contribute to global carbon emissions that drive climate change, to
the extent that the US military-industrial complex is responsible for one-third of all emissions, it is the poor countries that bear the brunt of the
high rises in temperatures that make regions uninhabitable, mass displacement,
crisis. This includes record
food and water shortages, rise in sea levels, floods, landslides etc. It is the inevitable outcome of the
uneven development inherent in global capitalism, where historically colonized and oppressed parts of
the world are used to extract raw materials and workers employed on starvation wages, to produce
goods that are to be exported for super profits by rich countries. Underdeveloped countries are trapped
in cycles of debt and their economic policies are dictated by the so called “Structural Adjustment
Programs”. This constitutes a very specific kind of development in such countries, where they can never
build their productive forces to be truly independent, while the comprador capitalist state exercises
colonial tools on semi-colonies and oppressed nations and ethnicities within its borders. This is in the
form of enclosures and privatization of commons like land, soils, rivers, fisheries etc. for mega
development projects like dams, housing schemes, tourist resorts etc by big conglomerates which
disrupt traditional livelihoods, dispossess native communities and destroy natural ecologies. It should also be
noted that the state that is imposed on the economies of developing countries by imperialists is also blamed on the oppressed. Due to the lack of environmental
regulations and poor working conditions, outsourcing
by multinationals and their emissions, wastes and pollution is
blamed on those countries whose local exploited masses are hardly in a position to benefit from this
production or consume any of these goods. India and China are examples of this, where the demand for a significant portion of production
is determined by and is exported to the western countries, and yet they are counted among being the second and the fourth largest carbon emitters contributing to
global warming. A very brief overview of recent climate disasters in Pakistan and India has been a record-breaking heat wave and water shortages that resulted in
several deaths, of which one example here was in Pir Koh, Balochistan. There are floods in northern areas, South Punjab and Baluchistan, hundreds of people lost
their lives and the death toll is still increasing. In Karachi, heavy rains resulted in floods that submerged parts of the city and took the heaviest toll on the slums and
shanty towns (Katchi Abadis) of Gujjarnala and Orangi, with no relief. In Bangladesh, torrential rains left almost one quarter of the country underwater, destroying
the homes of millions. Countries in Africa have also been facing deeply catastrophic effects like prolonged droughts in Kenya, Ethiopia and Somalia which have
pushed rural communities to the brink of starvation. The
situation in many Latin American countries is no different, with
glaciers melting at unprecedented rates and deforestation, especially of the Amazon. Throughout
extreme temperature rises and drops, water and food scarcity, it is the poor and the working class that
is exposed to the worst and face serious health hazards and even death. Another major factor in
exacerbating the climate change is the mindless consumerism which leads to the production of luxury
commodities that are solely for the consumption of the middle and the elite segments of the society,
while the basic necessities of the working masses are neglected as profit takes precedence over needs. A
prime example of how privatization of public services and austerity measures that are a characteristic
of the era of neoliberalism have worsened the climate crisis is the case of public transport. The
automobile and aviation industry does not benefit from the provision of public transport as it does from
cars and private jets, and so transport accounts for 14 per cent of all carbon emissions. In 1972, scientist Donella
Meadows published a report titled “The Limits Of Growth”, which studied and observed the patterns of economic growth and made predictions on its impact on the
environment. She
concluded that the very premise for exponential growth with limited natural resources
was an unsustainable economic model and would collapse in approximately the mid-21st century. The
findings of much of the more contemporary research indicate a similar trend. UN research estimates
that by 2050 there will be mass displacements of as many as 20 million climate refugees as a result of
environmental disaster, mostly from Global South countries. Given the imminence of the climate crisis
and its effects we are presently experiencing, the question arises of what the alternative can be. One of
the responses of the ruling class has been greenwashing the movement for environmental justice to
completely side-line the fundamental question of how production is organized and its effects, and
instead stress the transition to renewable energy. Whether it is proposals like Green New Deal or Great Reset, they are all based on the
faulty assumption that corporations that are responsible for wreaking havoc on the environment in the first place, will follow sustainability guidelines and switch to
less profitable modes of production for the long-term interest of all. These proposals also seem to be blind to the existence of imperialism and fall so
short of addressing the question, that they are akin to a form of denialism. The campaign for Green Capitalism can be pictured simply as
follows: A climate activist in an NGO in the imperial core wearing a “we are all in this together” t-shirt with an earth symbol, which was
produced by a sweatshop worker in a poor country with toxic wastes dumped near their local slum. Understanding these factors, what then is
the real solution? First, we have to dispel with any notions and all attempts to preserve the unnatural and destructive system by the capitalist
class which holds the sole blame for the crisis, like the Malthusian notion rooted and institutionalized in the colonial and racist mentality that
overpopulation and backwardness of underdeveloped countries is the problem. Secondly, we must acknowledge that a problem on a global
scale makes internationalism and solidarity between the oppressed and downtrodden populations of all countries, particularly those of Global
South, along anti-capitalist and anti-imperialist lines, a prerequisite for imposing radical climate action. It is imperative that the masses who are
the first to suffer the worst effects of climate change and have contributed the least in producing it, get to determine the solution rather than
those who are the last to face the outcome of the crisis they created. The climate crisis is unique from other crises in that it worsens and
sharpens all other crises and contradictions. Ever since the 2008-2009 crash, we have witnessed the decline of the neoliberal order and
increasingly desperate efforts to save it. The Covid pandemic made it clearer than ever that this was not possible and exactly what the response
and regard for life this system has. The fact of environmental degradation brings forth the likelihood of more pandemics and viruses as well.
And now, amidst inter-imperialist conflict, US and NATO military expansionism, record high inflation and the possibility of nuclear war, we are
once again confronted with the necessity of revolution and socialist construction. It is the only alternative which offers the economic, social and
political framework which can answer the question of the environment and the future of life itself, which is either socialism or extinction.
Mainstream academics and intellectuals would have us believe that history is linear, from barbarism to enlightenment. Some like Fukuyama
would go as far as to declare liberal democracy the “end of history”. The past for such thinkers is reduced to a series of individuals and their
ideas, and the prospects of the future for them also depend on what members of the ruling elite decide upon. But the masses of working and
oppressed people have always known better, and it is in times of crisis that our consciousness transforms and we articulate the direction we
want to take. History develops in zig zags, regresses into reaction and makes leaps of progress. It is precisely these historical conflicts and
changing material conditions that shape the class struggle and society most profoundly. The existential threat of climate breakdown places us in
such a moment in history as well, which Marx rightly noted, leads to “either in a revolutionary reconstitution of society at large, or in the
common ruin of the contending classes”.
 UQ EXT
Decline causes transition---crisis fundamentally changes entrenched models of growth
and empowers calls for degrowth
Derk Loorbach 16, director of DRIFT and Professor of Socio-economic Transitions at the Faculty of
Social Science, both at Erasmus University Rotterdam, “The economic crisis as a game changer?
Exploring the role of social construction in sustainability transitions,” Ecology and Society, Volume 21,
Issue 4, 2016, [Link]
Meanwhile, many political and public debates seem to be primarily concerned with standard, relatively short-term, economic issues, such as
monetary losses, stop-and-start economic growth, increasing unemployment, falling real estate prices, failing banks, virtually bankrupt nations,
and how to get back on course to economic growth. The standard responses when national governments are struggling to get their economies
healthy again are mostly about inducing more money, austerity measures, and introducing financial regulations, all often part of a broader
financial–economic logic (Stiglitz 2010). The
dominant focus on fighting economic deficits and problems at the
expense of investing in social and ecological deficits—thereby failing to address persistent problems in
these areas—can be argued to be a short-term strategy to prop up an inherently unmanageable system.
Examples are the support of system banks with public money and the green growth strategy (OECD 2009, 2013a). Transition theory (Grin et al.
2010, Markard et al. 2012) suggests that such short-term fixes are typical regime-based strategies to sustain existing structures, cultures, and
practices, and to fend off the threats of more radical systemic change.¶ The transition perspective suggests that most regular policy and
governance strategies essentially reproduce existing systems and, by definition, do not address the root causes of problems that are embedded
in the same structures and cultures that determine how solutions are framed and implemented. Such path-dependent
development
optimizing existing institutional structures will inevitably lead to recurring crises and ultimately a more
disruptive, shock-wise structural change of an incumbent regime. Transition studies thus argue that solutions
that address symptoms rather than the underlying structural causes tend to reinforce a lock-in and
result in further emergent problems (Rotmans and Loorbach 2010, Schuitmaker 2012). We argue that the underlying causes and
mechanisms of the economic crises have not been thoroughly analyzed, let alone addressed through effective policies. In a globalized economy,
fundamental changes will not likely come from actions by (national) governments or incumbent businesses, as these are inherently intertwined
with and dependent upon the currently still dominant financial–economic systems and their governance. The need for alternative economic
approaches, discourses, and systems is increasingly emphasized (Schor 2010, Simms 2013, Jackson 2013, van den Bergh 2013, Schor and
Thompson, 2014). Even though the benefits of liberalization are still significant, it seems that the transfer of control from government to
markets has substantially diminished possibilities for top-down policy making, adding to brittleness, complexity, and lock-in (Loorbach and
Lijnis-Huffenreuter 2013).¶ In this paper, we take a transition perspective on transformative social innovation to conceptualize and map the
systemic dynamics that have caused the economic crisis, as well as how it influences the dynamics of social transformation. We explore how
the economic crisis might be considered as a phase in a broader economic transition and which types of
changes coincide to develop into this direction. We thus view the economic crisis not as a phenomenon in isolation
within a relatively short time frame, but as an intrinsic part, or perhaps a symptom, of deeper
underlying structural societal changes over the longer term. The question we seek to address is how the economic crisis
interacts with broader societal changes as well as which dynamics might accelerate or hamper more structural (sustainability) transitions. To
this end, we
ask when and how a macrolevel or landscape development like the economic crisis
fundamentally changes the dominant logic, rules, and conditions of incumbent regimes. In other words,
when does a macrodevelopment become a game changer (cf. Avelino et al. 2014)?¶ The paper builds upon theoretical work from the European
FP7 project TRANSIT, which draws on transition theory to develop an empirically grounded theory on transformative social innovation. In this
paper, we introduce the analytical perspective that we developed on transformative social innovation and two empirical examples. Although
our analytical perspective suggests that alternatives and breakthroughs can come from any sector or actor, in this paper, we focus on the
agency of social innovation and civil-society-led initiatives in providing and producing alternatives. The paper was developed through a number
of iterations, workshops, and theoretical synthesizing. To develop our arguments, we build upon insights from sustainability transitions
literature (Grin et al. 2010, Markard et al. 2012), social innovation research (Mulgan 2006, Murray et al. 2010, Franz et al. 2012, Westley 2013,
Moulaert et al. 2013) and other fields aiming to understand the economic crisis. In addition, we include two empirical cases, transnational
networks of social innovation, time banks, and the transition movement. For both cases, we draw upon a general literature review.¶ The paper
is structured as follows. In the next section, “Economic change or transition?,” we introduce the economic crisis as a multifarious phenomenon,
how we understand it from a transition perspective, and how it is understood from an economist’s point of view. We illustrate that it is an
ambiguous phenomenon that is simultaneously seen as part of regular changes in that it is part of disruptive or transformative change. In the
section “Making sense of the economic crisis?,” we present a number of alternative perspectives on the economic crisis that put forward
particular fundamental and systemic causes of the economic crisis and how these are translated in so called “narratives of change.” In
“Transformative social innovations,” we highlight two specific social innovation initiatives, time banks and transition towns, which have an
evident transformative claim and potential, and reflect upon how such transformative social innovations relate (themselves) to the economic
crisis. In “Reconceptualizing societal transformations and the role of the economic crisis,” we synthesize our findings and argue that the
concepts of game changers and narratives could help to unpack the landscape and better understand how macro- and microlevels interact to
trigger transformative changes at the mesolevel. In conclusion, we address the need for a better understanding of the transformative impacts
of the different shades of change (in coevolution) vis-é-vis the restorative dynamics associated with incumbent regimes.¶ ECONOMIC CHANGE
OR TRANSITION?¶ The economic crisis has an empirical basis in factual events and economic statistics, but is also a social construct. In a narrow
sense, the term economic crisis refers to the
worldwide recession of 2007–2008, which changed economic
circumstances and investors’ outlooks and caused governments to nationalize and/or invest in failing
banks and to stimulate the economy inter alia through bail outs, expansion of the money supply
(quantitative easing), and low interest rates. It changed the lives of many whose employment or work
conditions were drastically affected (Melike 2014). It also made many observers much more critical about
capitalism and the stability of markets, especially financial markets (Murphy 2011, Stephan and Weaver 2011, Rifkin
2014, Weaver 2014). In Europe, the economic crisis was accompanied by (perceptions of) a debt crisis, a banking
crisis, and a euro crisis, all interrelated. The financial crisis, debt crisis, bank crisis, neo-liberal crisis, and global financial collapse
are not just different names but also refer to different, albeit closely related, empirical phenomena. Importantly, the perception and
representation of such phenomena in crisis terms can give scope for motivating and/or justifying responses.¶ This
economic crisis has
led to measures and dynamics with profound impacts on society. Impacts that hardly could have been
predicted or anticipated proactively in an objective and neutral way. As most of the formal and institutional measures
originate from either governmental or financial institutes, it is to be expected that these favor nondisruptive and reinforcing measures that shift
the cost of recovery toward society and strengthen even more the potential for financial–economic growth. The resulting austerity measures
and state budget cuts put pressure on public sector employment, transfer payments, and social welfare systems, contributing to rising
unemployment and underemployment among young and old, and lower disposable incomes for many in society. The state investments in the
recovery of the banking system as well as budget cuts in welfare, health care, and education have been put forward as necessary to restabilize
the economy and return to economic growth as before. Although the economy now seems on a path to recovery, many
of the social and ecological tensions and challenges still persist.¶ From a countermovement perspective, the dominant
measures have mainly strengthened incumbent regimes and even made more apparent the need for structural change. This becomes
apparent by a growing dissatisfaction with capitalism, a lack of trust in financial institutions, and an
increasing pressure on democratic political institutions (Castells 2010, Murphy 2011, Rifkin 2014, Weaver 2014). These
in turn focus attention on the meaning and quality of life, which can intensify individuals’ desires to live
in a more responsible and meaningful way as citizens, workers, and consumers, which again are accompanied by
an increasing attention to social value creation (based on the attention to these issues in magazines and business literature) (see O’Riordan
2013).¶ Over 70 years ago, Polanyi (1944) described countermovements as critical responses to the rise of liberal market economies in the
interwar period. Polanyi argued that countermovements tend to include both progressive and regressive forces, and he related the rise of
fascism as part of a double countermovement in reaction to the rise of liberal market economy (Worth 2013). Similarly, contemporary
counternarratives do not only include progressive sustainability-oriented ideas, but also more regressive ideas as manifested in populist and/or
extremist political parties. Moreover, counternarratives and grassroots movements are also not always easily discernible from mainstream
discourses. Although discourses on, e.g., solidarity economy can be constructed as counternarratives, they have considerable overlaps with
mainstream policy discourses on the “Big Society” (UK) and “the participation society” (The Netherlands). When comparing discourses on the
circular economy and the sharing economy, one can find differences in the former being partly associated with a corporate movement (see,
e.g., McKinsey and the Ellen McArthur Foundation) the latter being more associated with grassroots social movements (e.g., Peerby). Different
discourses are intermingled, changing over time, forming double movements (Polanyi 1944), or rather multilayered narratives of change.¶ We
use here narratives of change as an accessible and short summary of discourses on change and innovation (Avelino et al. 2014). Social
(counter)movements, such as the environmental movement or the antiglobalization movement, can be experienced as counternarratives of
change. These social movements “struggle against pre-existing cultural and institutional narratives and the structures of meaning and power
they convey” (Davies 2002:25). They achieve this partly through counternarratives, which “modify existing beliefs and symbols and their
resonance comes from their appeal to values and expectations that people already hold” (Davies 2002:25). This challenges us to expand beyond
the hegemonic mainstream narrative on, e.g., the economic crisis, by including a discussion of counternarratives around the new economy.¶
Thus, we see a double device of addressing the economic crisis through measures to prevent the breakdown and restabilization of the existing
system, and the rise of counternarratives and movements that find legitimacy in exactly these processes and measures. From
antiglobalization or Occupy movements, we can discern a loss of trust in the dominant economic model
of the growth society and its associated livelihood model where most material needs are satisfied through impersonal
market exchange. The formalized and impersonal market exchange is questioned, resulting in concepts such
as sharing, reciprocity, generalized exchange, or restricted exchange (see Befu 1977, Peebles 2010 for an overview).
Although the mainstream discourse is still about how to regain adequate rates of economic growth, an underlying longer-sighted
discourse (i.e., counternarrative) is emerging about alternatives for this growth model. This includes (longstanding
and more recent) ideas on degrowth (Schumacher 1973, Fournier 2008), green growth (OECD 2009, 2013a), or postgrowth
(Jackson 2009). These (counter)narratives also question the market logic that constructs human beings as
well as nature as resources and commodities in the production of goods (Freudenburg et al. 1995).

Economic crises cause increased cooperation, not war

Christopher Clary 15, Ph.D. in Political Science from MIT, Postdoctoral Fellow, Watson Institute for
International Studies, Brown University, “Economic Stress and International Cooperation: Evidence from
International Rivalries,” April 22, 2015, [Link]
Do economic downturns generate pressure for diversionary conflict? Or might downturns encourage austerity and economizing behavior in
foreign policy? This paper provides new evidence that economic stress is associated with conciliatory policies between
strategic rivals. For states that view each other as military threats, the biggest step possible toward bilateral cooperation is to terminate the
rivalry by taking political steps to manage the competition. Drawing
on data from 109 distinct rival dyads since 1950, 67 of
which terminated, the evidence suggests rivalries were approximately twice as likely to terminate during economic
downturns than they were during periods of economic normalcy. This is true controlling for all of the main
alternative explanations for peaceful relations between foes (democratic status, nuclear weapons possession, capability imbalance,
common enemies, and international systemic changes), as well as many other possible confounding variables. This research
questions existing theories claiming that economic downturns are associated with diversionary war, and instead argues that in certain
circumstances peace may result from economic troubles.
Defining and Measuring Rivalry and Rivalry Termination

I define a rivalry as the perception by national elites of two states that the other state possesses conflicting interests and presents a military
threat of sufficient severity that future military conflict is likely. Rivalry termination is the transition from a state of rivalry to one where
conflicts of interest are not viewed as being so severe as to provoke interstate conflict and/or where a mutual recognition of the imbalance in
military capabilities makes conflict-causing bargaining failures unlikely. In other words, rivalries terminate when the elites assess that the risks
of military conflict between rivals has been reduced dramatically.

This definition draws on a growing quantitative literature most closely associated with the research programs of William Thompson, J. Joseph
Hewitt, and James P. Klein, Gary Goertz, and Paul F. Diehl.1 My definition conforms to that of William Thompson. In work with Karen Rasler,
they define rivalries as situations in which “[b]oth actors view each other as a significant political-military threat and, therefore, an enemy.”2 In
other work, Thompson writing with Michael Colaresi, explains further:

The presumption is that decisionmakers explicitly identify who they think are their foreign enemies. They orient their military preparations and
foreign policies toward meeting their threats. They assure their constituents that they will not let their adversaries take advantage. Usually,
these activities are done in public. Hence, we should be able to follow the explicit cues in decisionmaker utterances and writings, as well as in
the descriptive political histories written about the foreign policies of specific countries.3

Drawing from available records and histories, Thompson and David Dreyer have generated a universe of strategic rivalries from 1494 to 2010
that serves as the basis for this project’s empirical analysis.4 This project measures rivalry termination as occurring on the last year that
Thompson and Dreyer record the existence of a rivalry.5

Why Might Economic Crisis Cause Rivalry Termination?

Economic crises lead to conciliatory behavior through five primary channels. (1) Economic crises lead to
austerity pressures,
which in turn incent leaders to search for ways to cut defense expenditures. (2) Economic crises also
encourage strategic reassessment, so that leaders can argue to their peers and their publics that defense spending can be arrested
without endangering the state. This can lead to threat deflation, where elites attempt to downplay the
seriousness of the threat posed by a former rival. (3) If a state faces multiple threats, economic crises provoke elites to
consider threat prioritization, a process that is postponed during periods of economic normalcy. (4) Economic
crises increase the political and economic benefit from international economic cooperation. Leaders
seek foreign aid, enhanced trade, and increased investment from abroad during periods of economic trouble. This search is
made easier if tensions are reduced with historic rivals. (5) Finally, during crises, elites are more prone to select leaders who are perceived as
capable of resolving economic difficulties, permitting the emergence of leaders who hold heterodox foreign policy views. Collectively, these
mechanisms make it much more likely that a leader will prefer conciliatory policies compared to during periods of economic normalcy. This
section reviews this causal logic in greater detail, while also providing historical examples that these mechanisms recur in practice.

Restructuring capitalism is possible

Mazzucato ’21 [Mariana; Jan 28; Professor in the Economics of Innovation and Public Value at
University College London where she is the founding director of the UCL Institute for Innovation and
Public Purpose; “Mission Economy: A Moonshot Guide to Changing Capitalism,” p. 204-10]
This book has applied what I believe is the immensely powerful idea of a mission to solving the ‘wicked’ problems we face today. In it, I have
argued that tackling
grand challenges will only happen if we reimagine government as a prerequisite for
restructuring capitalism in a way that is inclusive, sustainable and driven by innovation.
First and foremost, this means reinventing government for the twenty-first century – equipping it with the tools, organization and culture it needs to drive a
mission-oriented approach. It also means bringing purpose to the core of corporate governance and taking a very broad stakeholder position across the economy. It
means changing the relationship between public and private sectors, and between them and civil society, so they all work symbiotically for a common goal. The
reason for the emphasis on rethinking government is simple: only
government has the capacity to bring about transformation
on the scale needed. The relationship between economic actors and civil society shows our problems at their most profound, and this is what we must
unravel.

We can start by recognizing that capitalist markets are an outcome of how each actor in the system is
organized and governed, and how the different actors relate to one another. This holds for the private and public
sectors and for other sectors such as non-profits. No particular kind of market behaviour is inevitable. For example,
the market pressure often cited as forcing a business to neglect the long term in favour of the short
term, as too many companies do today, is the product of a particular organization of the market. Nor is
there anything inevitable in government bureaucracies being too slow to react to challenges such as
digital platforms and climate change. Rather, both are outcomes of agency, actions and governance
structures that are chosen inside organizations, as well as the legal and institutional relationships
between them. It is all down to design within and between organizations.
Capitalism is, indeed, in crisis. But the good news is that we can do better. We know from the past that public and private actors can come
together to do extraordinary things. I have reflected on how, fifty years ago, going to the moon and back required public and private actors to
invest, to innovate and to collaborate night and day for a common purpose. Imagine if that collaborative purpose today was to build
a more inclusive and sustainable capitalism: green production and consumption, less inequality, greater
personal fulfilment, resilient health care and healthy ageing, sustainable mobility and digital access for all. But small, incremental
changes will not get us to those outcomes. We must have the courage and conviction to lift our gaze higher – to lead transformative change
that is as imaginative as it is ambitious, aiming for something far more ambitious than sending a man to the moon.

To do this successfully, governments need to invest in their internal capabilities – building the competence and
confidence to think boldly, partner with business and civil society, catalyse new forms of collaboration across sectors, and deploy
instruments that reward actors willing to engage with the difficulties. The task is neither to pick winners nor to give
unconditional handouts, subsidies and guarantees, but to pick the willing. And missions are about making markets, not only fixing them. They’re
about imagining new areas of exploration. They’re about taking risks, not only ‘de-risking’. And if this means making mistakes along
the way, so be it. Learning through trial and error is critical for any value-creation exercise. Ambitious missions also have the
courage to tilt the playing field.

If government is indeed a value creator that is driven by public purpose, its policies should reflect and reinforce that. Too
many green policies today are just minor adjustments to a trajectory that still favours the old waste-prone behaviours and the financial casino
that worsens inequality. A
healthy economy that works for the whole of society must tilt the playing field
consistently to reward behaviours that help us achieve agreed and desirable goals. That means achieving
coherence in a multiplicity of fields, from taxes to regulation, from business law to the social safety net.

As emphasized throughout the book, it is key to not pretend that social missions are the same as technological
ones. With challenges that are more ‘wicked’ it is essential that moonshot thinking is linked with support to underlying government systems.
For example, a moonshot around disease testing or health priorities must interact closely with the public-health
system, not replace or circumvent it. Similarly, a moonshot around clean growth must interact with transport
systems and planning authorities and understand behavioural change. Thus it is critical to perceive missions not as
siloed projects but as being intersectoral, bottom-up, and building on existing systems (such as innovation systems, among
others).

Governments cannot pursue missions alone. They must work alongside purpose-driven businesses to achieve them. As I’ve argued in this book,
this requires addressing one of the biggest dilemmas of modern capitalism: restructuring business so that private
profits are reinvested back into the economy rather than being used for short-term financialized
purposes. Missions can accelerate this shift by shaping expectations about where business opportunities lie and also getting a better return
for public investment. In this sense they can begin to walk the talk of stakeholder value. This means creating a more symbiotic form of
partnership and collaboration in different sectors, whether in health, energy or digital platforms. A market-shaping perspective requires
governing these interactions so that intellectual property rights, data privacy, pricing of essential medicines and taxation all reflect what needs
to happen to reach the common objective. In health that must mean health innovation driven by the mission of
better health care for all; in energy it must mean divestment from fossil fuels and the creation of public
goods like green infrastructure and green production systems that protect the earthly oasis that Armstrong referred to;
and in the digital domain it must mean the use of digitalization to improve the access of all people to the power of the
technologies of the twenty-first century – while ensuring both data privacy and that our welfare states are strengthened, not
weakened, by digital platforms.

Doing capitalism differently requires reimagining the full potential of a public sector driven by public
purpose – democratically defining clear goals that society needs to meet by investing and innovating together. It
requires a fundamentally new relationship between all economic actors willing and able to tackle complexity to achieve
outcomes that matter.
 Link EXT
IPRs leads to the creation and diffusion technology that harms the environment while
reinforcing class divides.
Laperche, Galbraith and Uzunidis 6 (Blandine Laperche Research Unit on Industry and Innovation,
University of Littoral Cote d'Opale, France James K. Galbraith Lloyd M. Bentsen Jr Chair in
Government/Business Relations, LBJ School of Public Affairs, University of Texas at Austin, USA Dimitri
Uzunidis Research Unit on Industry and Innovation, University of Littoral Cote d'Opale, France,
“Innovation, Evolution and Economic Change”, [Link]
g6VSsC&oi=fnd&pg=PA185&dq=intellectual+property&ots=qBDxx7xum5&sig=AhgNKgNvaSsJXqAj3kA5S
Mfxzu0#v=onepage&q&f=false, 2006) CJun

Within the context of a protracted and aggravating crisis of capitalism, with a detrimental shift in the
balance of power against the working classes, and the rapid increase in the role of scientific and
technological developments, there has been a rising tendency, since the 1980s, for the protection
(through patents) of intellectual property rights (IPRs) arising from scientific/ technological innovations,
particularly in the fields of information technology and biotechnology. Apart from patents, protection of intellectual
property also includes copyrights and information databases (see Royal Society 2003). but I will here concentrate on patents as the, by far, most important form of
protection. This tendency is not an entirely new phenomenon. A similar trend appeared during the second half of the nineteenth century and then, even liberal
economists reacted to it, but their resistance relented as the crisis seemed to increasingly get hold of capitalism around the end of that century. Now,
as the
crisis exacerbates again, and with the abating resistance of the working class movement, the trend
towards an expansive protection of IPRs acquires an impressive momentum. As this expansive
protection concerns not only the effectiveness and duration of protection, but also extends to cases of
inventions (not strictly patentable), as well as to life forms and to basic knowledge for scientific
development, it raises important economic, social and ethical dilemmas. This trend brings about fundamental institutional
changes and calls for significant state reforms (re-regulations), as well as an increasing role of transnational corporations (TNCs), which control new technologies,
international organizations, conventions and agreements (see Drahos 1995; Correa 2000; Liodakis 2003). But
most important, we should stress
that patenting IPRs implies essentially a monopolization, that is, an exclusive utilization for a certain
period of time, of the knowledge and information associated to a particular scientific/technological
innovation. Patenting IPRs, according to the prevailing neo-liberal orthodoxy, is presumably intended to
induce further technological innovation and a diffusion of technological information.' Apart from other effects,
however, it crucially implies the expro-priation and valorization of relevant knowledge independently developed by other social agents, the transfer of surplus value
from other sectors, and their conversion into capitalist profits. This creates an additional important mechanism for counteracting, under contemporary conditions,
of the tendency of the rate of profit to fall, and thus facing the crisis. It seems, therefore, that universal (scientific) labour, rather than directly threatening capitalist
production, has become a major prop for the capitalist system, in the form of an expanding intellectual property. But, as a considerable amount of recent research
has shown, neither is science and technology socially and politically neutral (see Mackenzie and Wajcman 1985; Noble 1995, pp. 33-5, 108-09; Perelman 1998, p. 68,
2001; Liodakis 2003), nor could an institutional restructuring associated with an expansive protection of IPRs arising from a specific development of science and
technology be neutral. Neo-classical economics, of course, and neo-liberal social science in general have systematically obscured the nature and implications of
technical change, by creating an often metaphysical and class-neutral image of techno-logy? A great number of ideologues of the 'information society', in particular,
have tended to obscure rather than clarify the new socio-technical conditions, among other things, by obscuring property relations and depoliticizing work relations
in the so-called information age (for a critique see Wood 1997; May 2002). A critical approach to the role of technology, on the other hand, concerns both its
implications for the labour process, in a narrow sense, and the more general impact on economic and social development. It goes back, at least, to Marx who,
referring to the monopolization by capital of strategic information in the labour process, stresses that, '(t)he possibility of intelligent direction of production expands
in one direction because it vanishes in many others. What the specialised workers lose is concentrated in the capital that Braverman's classic work, which analyses
how monopoly capital. utilizing 'scientific' management and the technologies associated with Taylorism—Fordism, tends to de-skill labour and reduce its autonomy
at work (Braverman 1974, p. 425). More
recent work has stressed that the monopolistic control of information and
knowledge in the labour process, and through the institutionalization of intellectual property, tends
to reproduce class relations and expand a capitalist social division of labour (see May 2002). It can be argued
more generally that, apart from any positive effects, the specific development and application of
technology in capitalism may serve the interests of capital, but may be detrimental for the workers, as
well as for the ecosystem (see Marx 1967, Book I, pp. 506-07; Noble 1995; Liodakis 2003). Generalizing one of Manes familiar insights, we could
argue that, through technological developments, capital tends to undermine the two basic sources of all wealth, namely labour and nature. The
increasing
displacement of labour and the rising unemployment, caused by the extensive introduction of new
technologies and automation in production, is just one of these potentially detrimental effects of
technological modernization. The capitalist state has also played a crucial role in the development of technology, and this role is now extended to
the transnational state under formation. Contrary to a common and ideologically propagated belief, it was not the private market forces, but rather the state which
has played the most decisive role in the revolutionary development of technology (see Noble 1995. pp. 96-8; Castells 2000, p. 69). The
state (and the
transnational state likewise), again, by exerting its legislative and coercive power, plays a crucial role
in the expansion of intellectual property relations, and thus in reshaping and expanding the capitalist
relations of production (see Perelman 2001, 2003; Liodakis 2003; Cammack 2003). In the latter case, the misappropriation of resources brought about
through state enforcement is far more pervasive than in the case of property in the form of physical assets. The expansion of IPRs concerns, in

fact, an evolving interface between new technology and social relations of production, mediated by
state power. But in order to explicate the significance of the expansion in intellectual property, a
broader and more specific analysis of the implications of privatization (in general) is certainly required.

IPR has been a scapegoat for corporations and law makers to maximize their own
profits, especially in a time of economic depression.
Perelman 03 (Michael, an American economist and economic historian, currently professor of
economics at California State University, Chico. Perelman has written 19 books, including Railroading
Economics, Manufacturing Discontent, The Perverse Economy, and The Invention of Capitalism – he has
a phd in agricultural economics from California State University, "The Political Economy of Intellectual
Property," Monthly Review, [Link]
intellectual-property//NM)

The dramatic expansion of intellectual property rights represents a new stage in commodification that
threatens to make virtually everything bad about capitalism even worse. Stronger intellectual property
rights will reinforce class differences, undermine science and technology, speed up the corporatization
of the university, inundate society in legal disputes, and reduce personal freedoms. We have no precise measure
of the extent of intellectual property, but a rough calculation by Marjorie Kelly suggests the magnitude of intellectual property rights. At the
end of 1995, the book value of the Standard and Poor (S&P) index of 500 companies accounted for only 26 percent of market value. Intangible
assets were worth three times the value of tangible assets.1 Of course, not all intangible assets are intellectual property rights, but a substantial
proportion certainly is. While the legal protection of intellectual property might seem inseparable from
contemporary global capitalism, until fairly recently capitalists were equivocal about such things. During
the first six decades of the nineteenth century, corporations in the United States were not inclined to respect
such intellectual property rights. For example, they often paid as little as possible, or nothing at all, to inventors. In addition, the
United States did not even recognize international copyrights. The free-marketeers of the nineteenth century vigorously
opposed intellectual property rights as feudalistic monopolies. Their view of intellectual property rights
mostly dominated political economic opinion in the United States until the massive depression of 1870s
weakened faith in market forces. In the context of the economic crisis, business was desperate for anything that would return
profits to what they considered to be an acceptable level. At first, business owners tried forming cartels and trusts to hobble competitive
forces. In response to vigorous protests, Congress passed the Sherman Antitrust Act. However, corporations were
able to use
patents, which were perfectly legal, as a convenient loophole to evade the intent of that law. Through
patent pools, they could divide up the market and exclude new competitors. In this way, intellectual
property rights were important in establishing monopoly capitalism. The strengthening of intellectual
property rights accelerated once again as the bloom wore off the post-Second World War “Golden Age”
and the United States’ export surplus disappeared. Behind closed doors, corporate leaders successfully
lobbied the government to strengthen intellectual property rights that would give advantages to their
industries. Just as in the late nineteenth century, business saw property rights as a means of increasing
profits when economic conditions began to sour. The public never had a clue about the extent to which
the government had given away important rights.

IP protections leads to greater class difference, science blockages, and secrecy

Perelman 03 (Michael, an American economist and economic historian, currently professor of
economics at California State University, Chico. Perelman has written 19 books, including Railroading
Economics, Manufacturing Discontent, The Perverse Economy, and The Invention of Capitalism – he has
a phd in agricultural economics from California State University, "The Political Economy of Intellectual
Property," Monthly Review, [Link]
intellectual-property//NM)

Intellectual property rights are in the process of corrupting society in a number of ways. First of all,
intellectual property rights will reinforce class differences. Worldwide, the rich have become richer to an
unimaginable extent in recent years. The members of the “Forbes 400,” a compilation of the 400 richest
people in the United States, have a combined net worth of $1 trillion-greater than the gross domestic
product of China.16 Between 1995 and 1998, the average annual income for a member of this elite
group rose from $50 million to a staggering $110 million. The obscene wealth of a Bill Gates of
Microsoft, a Phil Knight of Nike, and all of the other instant Internet billionaires, alongside the sizable
residue of poverty that blights the contemporary United States, reminds us of the link between the
distribution of income and intellectual property. Emblematic of the extent of this new distribution of
property, in 1999 outside of those who have inherited their wealth, three of the four richest people in
the world, according to a Forbes magazine survey, owed their wealth to Microsoft, one of the major
holders of intellectual property rights, befitting the so-called New Economy in which “DOS Capital” has
supplanted Das Kapital.17 Perhaps the famous trickle down effect could justify the obscene
maldistribution of wealth if intellectual property rights actually improved productivity. In fact,
intellectual property rights are terribly destructive of productivity on many counts. First of all,
intellectual property rights undermine the very science and technology that they are supposed to
promote. Intellectual property rights are to science what tollbooths are to highway traffic. Both create
bottlenecks and impede forward progress, but in the case of intellectual property rights, innumerable
disputes arise about who gets to collect the tolls and how much the tolls should be. To the extent that
the present system of intellectual property rights constricts the flow of new technologies, it imposes
another incalculable cost on society. For example, virtually no new technology is the product of a single
person or even a single corporation. Ideas and discoveries, what Marx called “universal labor,” draw
upon a multitude of sources. Sorting out who deserves legitimate credit for any technology is
impossible. Just consider the complexity of a large software system with 100,000 components. It can use
hundreds of previously patented techniques. Because each patent search costs about a thousand
dollars, searching for all the possible patent potholes in the program could easily run well over $1
million, and that far exceeds the cost of writing the program.18 Intellectual property rights spawn a
system of wasteful litigation. Already, by the early 1990s, Intel’s annual litigation budget alone was
believed to be at least $100 million. No doubt it has grown significantly since then. Intellectual property
rights also create an atmosphere of secrecy, which is inimical to scientific progress. Finally, the quest for
intellectual property rights is speeding up the corporatization of the university. Universities now
routinely sell to corporations the rights to the patents developed in university laboratories, often at
public expense.
Impact EXT
 2NC---Sustainability
Capitalism’s unsustainable:
1---Overaccumulation, social polarization, and political legitimacy
William Robinson 22, distinguished professor of sociology, global studies and Latin American studies
at the University of California at Santa Barbara, 4/24/22, “Global Capitalism Has Become Dependent on
War-Making to Sustain Itself,” [Link]
on-war-making-to-sustain-itself/
The Crisis of Global Capitalism

This crisis of global capitalism is economic, or structural, one of chronic stagnation in the global
economy. But it is also political: a crisis of state legitimacy and capitalist hegemony. The system is moving
towards “a general crisis of capitalist rule” as billions of people around the world face uncertain
struggles for survival and question a system they no longer see as legitimate. Historically, wars have
pulled the capitalist system out of crisis while they serve to deflect attention from political tensions and
problems of legitimacy.

Economically, global capitalism faces what is known in technical language as “overaccumulation”: a

situation in which the economy has produced — or has the capacity to produce — great quantities of wealth but
the market cannot absorb this wealth because of escalating inequality. Capitalism by its very nature will
produce abundant wealth yet polarize that wealth and generate ever greater levels of social inequality
unless offset by redistributive policies. The level of global social polarization and inequality now
experienced is without precedent. In 2018, the richest 1 percent of humanity controlled more than half of the world’s wealth while
the bottom 80 percent had to make do with just 5 percent. The international development agency Oxfam reported in
January that during the first two years of the coronavirus pandemic, the 10 richest men in the world
more than doubled their fortunes, from $700 billion to $1.5 trillion, while 99 percent of humanity saw a
fall in their income and 160 million more people fell into poverty.

Such inequalities end up undermining the stability of the system as the gap grows between what is — or
could be — produced and what the market can absorb. The extreme concentration of the planet’s
wealth in the hands of the few and the accelerated impoverishment and dispossession of the majority
means that the transnational capitalist class, or TCC, has increasing difficulty in finding productive
outlets to unload enormous amounts of surplus it accumulated. In the years leading up to the pandemic,
there was a steady rise in underutilized capacity and a slowdown in industrial production around the
world. The surplus of accumulated capital with nowhere to go expanded rapidly. Transnational corporations
recorded record profits during the 2010s at the same time that corporate investment declined. Along with militarized
accumulation, the TCC has turned to unprecedented levels of financial speculation and to debt-driven
growth to sustain profit-making in the face of the crisis. If left unchecked, overaccumulation results in
crisis — in stagnation, recessions, depressions, social upheavals and war — just what we are
experiencing right now.
 2NC---Environment Sustainability
Infinite consumption on a planet with finite resources isn’t sustainable.
Louis J. Kotzé 22, Faculty of Law, North-West University, with; Sam Adelman; 9/8/22, “Environmental
Law and the Unsustainability of Sustainable Development: A Tale of Disenchantment and of Hope,” Law
and Critique, [Link]

Sustainable development is central to the current global development vision (Guruswamy 2010). It also
acts both as a pivotal point of orientation of environmental law and policy, and as a Grundnorm that
anchors and orientates global environmental governance (Kim and Bosselmann 2013). Sustainable development emerged
in the 1970s with the noble idea that individuals would favour development that enhances human wellbeing and social justice while protecting
the environment. It
was originally conceived as a ‘discourse of resistance, fusing radical environmental
consciousness with a critical rethinking of a failed development enterprise’ by highlighting the ‘scarcity
and limits, affluence and poverty, global inequality, and the environmental viability of westernization’
(Carruthers 2001, p. 93).

Over the years, however,

sustainable development has metamorphosed into a perverse ideological
paradigm that provides the overarching ‘basis for organising the beliefs, subjectivities and values of
individuals, and thus producing and reproducing a certain social order in its multiple dimensions, from
the individual to the institutional’ (Gudynas 2013, p. 28). Neoliberalism acts as the broader context for the continuing
hegemony of mainstream models of development, of which sustainable development is the latest and dominant incarnation (Carruthers 2001).
More recently, the
confluence of the Covid-19 pandemic and climate change has yet again exposed the
limitations of sustainable development and the inequalities occasioned by its neoliberal mindset
(Barbier and Burgess 2020; Horn 2021). These predatory mainstream development models contribute to
the socio-ecological crisis of the Anthropocene by exacerbating systemic inequalities and injustices,
repeatedly generating economic crises and driving habitat destruction that intensify the vulnerability of
the living order (Adelman 2021a). This is anything but sustainable development.
This article outlines our deep concern about the perverse consequences of the central role of sustainable development as the dominant
worldview that steers the current course of ‘development’, especially insofar as it manifests as a core environmental law and governance
principle in the context of the Anthropocene.Footnote1 We concur with the view that ‘sustainable development is an ecopolitical project which
might be neither sustainable nor developmental … [I]t is a palatable approach to “green-wrap” the economic and political project of
“sustainable degradation” already now fully in play’ (Luke 2008, p. 1813). We argue that sustainable development, an ‘improbable idea [that] is
too rarely questioned’ (Nebbia 2012, p. 101), promises what it cannot deliver due to its central contradiction between
economic growth and ecological sustainability. We will further show that sustainable development is
based on the false promise that endless growth is actually possible on a finite planet where the human
footprint is already far greater than Earth’s ability to sustain life.Footnote2 This false promise cultivates,
what Gudynas (2013) describes as the delusion of infinite natural assets that the capitalist system has at
its disposal to expand forever, while in fact, the ambition of sustainable development is detached from
the reality of ever-deepening socio-ecological destruction of a finite planet. Another concern is that the
concept is so conveniently malleable that it enables its proponents to mask the negative socio-ecological
impacts of relentless growth-driven development promoted by states and corporations. We are particularly
concerned that environmental law is complicit in facilitating all of the foregoing to the extent that sustainable development is a
legally sanctioned ideological palliative at the centre of environmental law and governance that
enables its proponents to rationalize continuing destruction of the fragile earth system, rather than
safeguarding planetary integrity (Kotzé et al. 2022, forthcoming; Richardson 2011, p. 31). Our focus in this paper is on
environmental law, but the legal and regulatory responses adopted by the international community in response to environmental degradation
have implications for the broader substantive and systemic principles and processes of law.
In the following section, we offer a brief contextual overview and critique of growth-driven development and the associated ideology of
developmentalism and neoliberal globalization that underpins sustainable development. We endeavour to reveal the many contradictions at
the heart of sustainable development’s history and its different iterations by global institutions and associated legal and political apparatus. We
then provide a deeper critique of the role of sustainable development in environmental law and governance to demonstrate how it perpetuates
epistemologies of mastery over a vulnerable living order at a time when we urgently need epistemologies of humility and care as alternatives to
mainstream models of development. The aim in this part of the discussion is to show how environmental law has played a crucial role in
legitimising a wide range of socio-ecologically destructive practices around the world in the name of sustainable development. The article
concludes more hopefully with an examination of an attempt to reimagine alternatives to the sustainable development paradigm in the form of
the indigenous onto-epistemology of buen vivir that articulates an ethics of humility and care alien to sustainable development. While buen
vivir has not yet managed to fully replace sustainable development in the countries where it operates (at least not in practice), the influence of
this worldview is already evident in some laws and policies. This suggests that its acceptance in environmental law and governance as an
alternative to sustainable development is more feasible than might be expected, and that there is hope for pursuing a radically different future
legal trajectory of planetary care that focuses on the well-being of the entire living order.

The Problems with Development, Developmentalism and Growth

Development, the fulcrum on which the notion of sustainable development revolves, emerged after the
Second World War as a way of incorporating the erstwhile Third World into the global economy on
unequal terms (Escobar 2011). As Hettne writes, development is ‘one of the oldest and most powerful of all Western ideas’ (1995, p. 29).
Development was promoted as the means whereby postcolonial states:

could achieve economic growth, reduce poverty and promote social justice. In principle, development is
a process of social change designed to improve the wellbeing of people. In practice, it has regularly
manifested itself as underdevelopment or maldevelopment so that its scope and rationale have been
vigorously contested. (Adelman and Paliwala 2021, p. 1)

The idea of development was promoted by the West as the means to save benighted and feckless
developing countries from themselves. The concept attracted criticism from the outset but its advocates
defended it as a form of progress through modernisation, extractive industrialisation, and economic
growth as the primary means of promoting human wellbeing and as the sole expression of material
progress (Gudynas 2013). Supporters of development conveniently discount the inconvenient truth that all economic activity is
intrinsically destructive when it involves the exploitation of the foundations of life on Earth (Luke 2008).
Mainstream, hegemonic models of development have been particularly heedless of environmental
destruction despite repeated warnings about the limits to growth, increasing evidence of earth system
decay, fast approaching planetary boundaries, and a looming sixth mass extinction event (Barnosky et al.
2011). Profit has persistently trumped people and the planet, driven by the logic of capital accumulation
as the only measure of progress and well-being. One effect is that the tenacity of such mainstream models of development
has successfully crowded out and marginalized alternative visions of progress and well-being in their pursuit of ‘uninterrupted growth towards
a civilisation in the image and likeness of the countries of the North’ (Alcoreza 2013, p. 147).

Today it is almost tautological to argue that development requires growth. Despite attempts by Sen (1999) and others to construe development
as freedom through the capabilities approach—which gave rise to measures of human-centred development such as the Human Development
Index—the concept of development remains irredeemably anthropocentric, economistic, extractivist, and growth-driven (UNDP n.d.). By the
1960s, development had become an ideological end in itself in the form of developmentalism;

an ideological orientation characterized by the fetishization of development, or the attribution to development of the power of a natural (or
even, divine) force which humans can resist or question only at the risk of being condemned to stagnation and poverty. The ideology renders
opaque the historical forces that have shaped the idea of development. It also disguises the social and political forces that have played, and
continue to play, a crucial part in endowing it with the power to dominate human consciousness. (Dirlik 2014, pp. 30–31)

The intrinsicflaws of developmentalism, and by extension of neoliberal sustainable development, are only now
belatedly acknowledged (at least in part) by institutions such as the United Nations Environment Programme
(UNEP), a longstanding promoter of green capitalism and the green economy (Carvalho 2001). UNEP’s position aligns with the mainstream
proposition that sees green capitalism and sustainable development as a combination of ‘environmental and sustainability discourses with
industrial and economic policy ones, in search of “win–win” solutions and virtuous cycles of progress and prosperity’ (Bina 2013, p. 1024). It has
taken several years for the world’s foremost intergovernmental environmental protection champion to finally accept that ‘the current mode of
development degrades the Earth’s finite capacity to sustain human well-being’ (UNEP 2021, p. 13, our emphasis). But having linked itself so
tightly to sustainable development, UNEP is trapped within the mindset of human focused developmentalism that consistently sidelines
ecological sustainability. This
is also evident in its acknowledgment that ‘environmental changes are
undermining hard-won development gains … [and] are impeding progress towards ending poverty and
hunger, reducing inequalities and promoting sustainable economic growth’ (UNEP 2021, p. 13, our emphasis).
Global governance institutions responsible for environmental protection are clearly mired in a discursive
straitjacket that makes it difficult or even illegitimate for them to question sustainable development
orthodoxy. The nub of the problem is that all mainstream models of development are predicated upon
economic growth which flows from the dogmatic insistence that the current mode of purportedly
sustainable development can be tweaked in the right direction. This makes it impossible to reconcile
ecological sustainability and sustainable economic growth. Given earth system limits, endless growth cannot be
sustainable; after all, humanity currently uses 74 per cent more than the planet’s ecosystems are able to
regenerate—or 1.7 Earths,Footnote3 while four of the nine planetary boundaries have already been crossed, and the others are fast
approaching (Rockström et al. 2009). Yet, ‘growthism’ (Hickel 2020, p. 89) remains the main driver of neoliberal globalisation and its
devastating effects on our shared world (Fraser 2021; Springer 2016), while proponents of green capitalism such as UNEP continue to maintain
that it is possible to grow our way to sustainability, among others, through decoupling; the idea—or fantasy—that economies can grow without
increasing environmental pressures (Fletcher and Rammelt 2017).

Corporate pillaging guarantees ecological breakdown and climate catastrophe---

planetary boundaries
Jeremy Lent 22, award-winning author, non-profit Liology Institute founder, 3/14/22, “The world on
the brink of the abyss. Looking at the real danger,” [Link]
[Link]

The neoliberal ideology of unrestrained markets has led to a global crisis. Humanity now faces an
existential threat as the result of global dominance by corporations, whose ultimate goal is at odds
with human flourishing

Back in 1947, as the world was rebuilding from the destruction of the Second World War, a few dozen free-market ideologues met in
a luxury Swiss resort to form the Mont Pelerin Society—an organization devoted to spreading the ideology of neoliberalism throughout the
world. Their ideas—that the free market should dominate virtually all aspects of society, that regulations should be dismantled, and that
individual liberty should eclipse all other considerations of fairness, equity, or community welfare—were considered fanatical at the time. Over
three decades, though, financed by wealthy donors, they assiduously established networks of academics, businessmen, economists, journalists,
and politicians in global centers of power.

When the stagflation crisis of the 1970s threw classic Keynesian economics into disrepute, their moment of opportunity arrived. By
1985,
with free market disciples Ronald Reagan and Margaret Thatcher entrenched in power, they initiated a
campaign to systematically transform virtually all aspects of life into an unrestrained marketplace,
where everything could be bought and sold to the highest bidder, subject to no moral scruple. They
crippled trade unions, tore up social safety nets, reduced tax rates for the wealthy, eliminated
regulations, and instituted a massive transfer of wealth from society at large to the uber-elite.

Through their control of government, finance, business, and media, neoliberal

adherents have succeeded in
transforming the world into a globalized market-based system. The triumph of neoliberalism has led to
the greatest inequality in history, where the world’s twenty-six richest people own as much wealth as
half the entire world’s population. It also created the conditions for large transnational corporations to
become the dominant force directing our world, more powerful than any government or nation.
Through their influence on legislation, they have virtually eliminated regulatory limitations on their
growth, their permissible industries, or their competitive playing field. Massive corporations are
gobbled up by even vaster ones, creating commanding monoliths that set the terms for their own
activities. Of the hundred largest economies in the world, sixty-nine now are corporations.
In today’s corporate-dominated global stage, nations and municipalities compete against each other to attract corporate investment to their
region, relinquishing taxation, regulations, and worker protections in the hope of jobs or infrastructure spending. In
most countries, the
boundaries between corporate executives and government have become so blurred as to be virtually
nonexistent. Transnational corporations control most of the world’s finance, manufacturing,
agriculture, and trade, and are routinely invited to intervene in international treaty negotiations,
ensuring that their interests remain protected.
A new moniker arising from the corporate titans at the World Economic Forum is “stakeholder capitalism”: an inviting term that seems to imply
that stakeholders other than investors will play a role in setting corporate priorities, but actually refers to a profoundly anti-democratic process
whereby corporations are assuming even more dominant roles in global governance. This month, the UN Food Systems Summit was
essentially taken over by the same giant corporations, including Nestlé and Bayer, that are largely responsible for
the very problems the summit was intended to grapple with — which led to a widespread boycott by hundreds of civil
society and Indigenous groups.

If this supreme global force had benevolent aims, then at least a case could be made for permitting it to retain such control over human
activity. But the opposite is true. The
common goal of corporations around the world is to monetize human
activity and what’s left of nature’s abundance as rapidly and efficiently as possible. The overriding
purpose of the world’s most powerful institutional force is thus directly at odds with a flourishing Earth
or a viable future for humanity.

A fundamental reason for the rapacious behavior of transnational corporations is their drive to
maximize shareholder value above anything else. While there is no explicit requirement for this in the standard corporate
charter, a century of case law has entrenched this principle into the behavior of large corporations to the point that is has become the de facto
standard of operation. As
a result, if corporations were people, they would be considered psychopaths, utterly
devoid of any caring for the harm they cause in the pursuit of their goals.

This relentless pursuit of profit and economic growth above all else has propelled human civilization onto
a terrifying trajectory. The uncontrolled climate crisis is the most obvious danger: The world’s current policies
have us on track for more than 3° C increase by the end of this century, and climate scientists publish
dire warnings that amplifying feedbacks could make things far worse than even these projections, and
thus place at risk the very continuation of our civilization.

But even if the climate crisis were somehow brought under control, a continuation of untrammeled
economic growth in future decades will bring us face-to-face with a slew of further existential threats.
Currently, our civilization is running at 40% above its sustainable capacity. We’re rapidly depleting the
earth’s forests, animals, insects, fish, freshwater, even the topsoil we require to grow our crops. We’ve
already transgressed five of the nine planetary boundaries that define humanity’s safe operating
space, and yet global GDP is expected to more than double by mid-century, with potentially irreversible
and devastating consequences.
 AT: Cap Solves War
Modern capitalism relies on permanent war---militarized accumulation to avert
stagnation outweighs geopolitics and guarantees world war
William Robinson 22, distinguished professor of sociology, global studies and Latin American studies
at the University of California at Santa Barbara, 4/24/22, “Global Capitalism Has Become Dependent on
War-Making to Sustain Itself,” [Link]
on-war-making-to-sustain-itself/

The Russian invasion of Ukraine has sparked fierce political debate on the geopolitical consequences of the conflict. But less noticed
and equally as important, the war has paved the way for a more sweeping militarization of what was already a
global war economy mired in deep political and economic crisis. Geopolitical tensions and international
conflicts may be tragic for those caught up in conflagrations such as in Ukraine — but advantageous for
those seeking to legitimize expanding military and security budgets and open up new opportunities for
capitalist profit-making in the face of chronic stagnation and social discontent.
In late March, the Biden administration, citing the Russian invasion, called for a $31 billion increase in the Pentagon budget over the previous
year and on top of an emergency appropriation weeks earlier of $14 billion for Ukraine’s defense. Prior to the invasion, in late 2021, the U.S.
government approved a nearly $800 billion military budget, even as, in the same year, it ended the war in Afghanistan. Almost
overnight
following the Russian invasion, the U.S., European Union, and other governments around the world
allocated billions of dollars in additional military spending and sent streams of military hardware and
private military contractors into Ukraine.

Shares of military and security firms surged in the wake of the invasion. Two weeks into the conflict, shares of
Raytheon were up 8 percent, General Dynamics up 12 percent, Lockheed Martin up 18 percent and Northrop Grumman up 22 percent, while
war stocks in Europe, India, and elsewhere experienced similar surges in expectation of an exponential rise in global military spending. Russian
President Vladimir Putin, in the words of the managing director of AeroDynamic Advisory, a Pentagon contractor, is “unquestionably the best F-
35 salesman of all time,” in reference to a spike in U.S. government funding for the Lockheed Martin jet fighter. Said one consultant to Boeing,
General Dynamics, Lockheed Martin and Raytheon Technologies: “For the defense industry, happy days are here again. When the defense
budget rises it tends to lift all boats in the industry.”

Militarized Accumulation

The Russian invasion — brutal, reckless and condemnable by any standard — has sparked debate on
NATO’s proposed expansion into Ukraine and the role that it played in motivating the Kremlin. U.S. officials
were keenly aware, in fact, that the drive to expand NATO to Russian borders would eventually push Moscow into
a military conflict. “We examine a wide range of nonviolent measures that could exploit Russia’s actual vulnerabilities and anxieties as a
way of stressing Russia’s military and economy and the regime’s political standing at home and abroad,” notes a 2019 study by the RAND
Corporation, a Pentagon-affiliated think tank. “The steps we examine would not have either defense or deterrence as their prime purpose,” it
states, but rather, “these steps are conceived of as elements in a campaign designed to unbalance the adversary, leading Russia to compete in
domains or regions where the United States has a competitive advantage, and causing Russia to overextend itself militarily or economically.”

But the provocation could not be reduced to geopolitical competition, however important, as most observers
were keen to do. Missing from the larger picture was the centrality of militarized accumulation — of
endless low- and high-intensity warfare, simmering conflicts, civil strife and policing — to the global
political economy. Militarized accumulation refers to a situation in which a global war economy relies on
the state to organize war-making, social control and repression to sustain capital accumulation in the
face of chronic stagnation and saturation of global markets. These state-organized practices are outsourced to
transnational corporate capital, involving the fusion of private accumulation with state militarization in order to sustain the process of capital
accumulation. Cycles of destruction and reconstruction provide ongoing outlets for over-accumulated
capital; that is, these cycles open up new profit-making opportunities for transnational capitalists
seeking ongoing opportunities to profitably reinvest the enormous amounts of cash they have
accumulated. There is a convergence in this process of global capitalism’s political need for social
control and repression in the face of mounting popular discontent worldwide and its economic need to
perpetuate accumulation in the face of stagnation.

Wars provide critical economic stimulus. They have historically pulled the capitalist system out of
accumulation crises while they serve to deflect attention from political tensions and problems of
legitimacy. It took World War II to finally lift world capitalism out of the Great Depression. The Cold War legitimated a half century of
expanding military budgets and the Iraq/Afghanistan wars, the longest in history, helped keep the economy sputtering along in the face of
chronic stagnation in the first two decades of the century. From
the anti-Communist fervor of the Cold War, to the “war
on terror,” then the so-called New Cold War, and now the Russian invasion of Ukraine, the transnational
elite, led by Washington, have had to conjure up one enemy after another to legitimate militarized
accumulation and deflect crises of state legitimacy and capitalist hegemony onto external enemies and
contrived threats.
The events of September 11, 2001, marked the start of an era of a permanent global war in which logistics, warfare, intelligence, repression,
surveillance and even military personnel are more and more the privatized domain of transnational capital. The Pentagon budget increased 91
percent in real terms between 1998 and 2011, while worldwide, total state military budget outlays grew by 50 percent from 2006 to 2015, from
$1.4 trillion to more than $2 trillion. (This figure does not take into account the hundreds of billions of dollars spent on intelligence; contingency
operations; policing; bogus wars against immigrants, terrorism and drugs; and “homeland security.”) During this time, military-industrial
complex profits quadrupled.

However, focusing just on state military budgets only gives us a part of the picture of the global war economy. As I showed in my 2020 book,
The Global Police State, the various wars, conflicts and campaigns of social control and repression around the
world involve the fusion of private accumulation with state militarization. In this relationship, the state
facilitates the expansion of opportunities for private capital to accumulate through militarization, such as
by facilitating global weapons sales by military-industrial-security firms, the amounts of which have reached unprecedented levels. Global
weapons sales by the top 100 weapons manufacturers and military service companies increased by 38
percent between 2002 and 2016 and can be expected to escalate further in the face of a prolonged war
in Ukraine.
Said one consultant to Boeing, General Dynamics, Lockheed Martin and Raytheon Technologies: “For the defense industry, happy days are here
again.

By 2018, private for-profit military companies employed some 15 million people around the world, while another 20 million people worked in
private security worldwide. The private security (policing) business is one of the fastest-growing economic sectors in many countries and has
come to dwarf public security around the world. The amount spent on private security in 2003, the year of the invasion of Iraq, was 73 percent
higher than that spent in the public sphere, and three times as many persons were employed in private forces as in official law enforcement
agencies. In half of the world’s countries, private security agents outnumber police officers.

These corporate soldiers and police were deployed to guard corporate property, provide personal security for executives and their families;
collect data; conduct police, paramilitary, counterinsurgency and surveillance operations; carry out mass crowd control and repression of
protesters; run private detention and interrogation facilities; manage prisons and participate in outright warfare. Now, these same private
military and security firms are pouring into Ukraine, with some mercenary companies offering between $1,000 and $2,000 a day for those with
combat experience.

The Russian invasion has accelerated but did not originate the ongoing surge in military spending around the world. It
is notable that
state military spending worldwide skyrocketed in the wake of the 2008 global financial collapse even
beyond the post-9/11 spending hike, rising from about $1.5 billion in 2008 to over $2 trillion in 2022.
The fact that this explosion in spending coincides perfectly with continued worldwide stagnation
following the Great Recession suggests that the heightened militarization of the global economy is as
much or more a response to this chronic stagnation than to perceived security threats. If bursts of
militarized accumulation (such as that unleashed by 9/11, then by the 2008 financial collapse, and now
by the Russian invasion) help offset the overaccumulation crisis further into the future, they are also
high-risk bets that heighten worldwide tensions and push the world dangerously towards all-out
international conflagration.

Interdependence is bad---it cheapens war and redistributes risk which incentivizes

aggression
Lucas Hahn 16, Bryant University, Senior Staff Accountant at EDF Renewables, “Global Economic
Expansion and the Prevalence of Militarized Interstate Disputes,” April 2016,
[Link]
3. Neo-Marxist Views on Asymmetrical Trade

One of the most supported arguments against the notion that economic expansion promotes peace is that trade, brought about by economic
expansion, actually increases MIDs. Many authors have in fact argued that increased economic
interdependence and increased trade
may have, in some ways, “cheapened war”, and thus made it easier to wage war more frequently (Harrison and
Nikolaus 2012).

Neo-Marxists and Dependency Theorists argue that the

notion that trade promotes peace often depends on the
balance of trade between two nations with a trading relationship. If the two nations have a symmetrical
trading relationship, then both nations benefit from trade equally and may thus, engage in less conflict just as
proposed by many liberal theorists. However, more often than not, the trading relationship between two nations may
be asymmetrical. In this case, one nation benefits more than the other. Furthermore, one nation is
often more dependent on trade with its partner than the partner is with it. These circumstances can
breed violent conflicts (Barbieri and Schneider 1999). Barbieri’s (1996, 40) regression analyses have supported these claims. She found
that when dyads (pairs of nation-states) are highly interdependent, they are nearly 25 times more likely to
engage in armed conflict than when the dyads are not interdependent. Ultimately, she came to the conclusion that
there seems to be a “hurdle effect”. Up to a point trade does seem to promote peace. However, after
that point, the balance of trade often becomes disproportionate between two nations and as a result trade
promotes conflict.
4. Interdependence Versus Interconnectedness

The previous subsection alludes to the fact that there

is a fundamental difference between economic
interconnectedness and economic interdependence. Basically, interconnectedness involves a mutual and
equal benefit between two economically connected nations. Interdependence involves an unequal benefit between two
economically connected nations where one nation more extensively relies on the other. Gasiorowski (2007) argues, that growing
interconnectedness brought about by globalization decreases MIDs. However, growing interdependence, also largely brought
about by globalization, increases MIDs. In this case, when one nation is intrinsically dependent on another,
they will be more sensitive and vulnerable to any changes in the economic policy of their major trading
partner. Thus, depending on the relationships between different nations violent conflicts may either be increased or decreased by economic
expansion.
 AT: Innovation Good---K solves
Capitalism is worse for innovation.
Vanessa A. Bee 18, Senior Litigation Counsel at the Consumer Financial Protection Bureau with a JD
from Harvard Law, “Innovation Under Socialism,” Current Affairs, 10/24/18,
[Link]
I have friends who revel in arriving in a place and immediately investigating the neighborhood’s shortcuts, jogging down paths without a
destination, wandering down wayward trails just to see where they lead. For those whose thirst for adventure is complemented by a healthy
dose of spatial awareness and cognition, discovery is a thrill. Personally, I cannot relate to any of this. Nothing means less to me than the
orientation of the sunrise and sunset. Your cardinal points are wasted on me, for I am a person endowed with no sense of direction
whatsoever. Throw in any language other than my native fluency in French and English, along with a flailing Spanish, and my demise is
guaranteed. Yet, in recent years, I have felt confident enough to explore places where I had never been before without knowing the local
official language. In all this, my saving grace has been my iPhone—the powerful pocket-sized computer whose mapping and translating
superpowers have convinced me almost no place is out of my reach. I’ll say it: I am a socialist and I love my iPhone.

This confession is music to the ears of the “capitalism made your iPhone” club. Indeed, proponents of
capitalism often brandish rapid innovation as if it were an automatic checkmate on collectivist
socioeconomic ideologies. To them, modern technology proves not only that capitalism works, but that
it is the best system to stimulate innovation. The subtext of their retort is that a socialist economy
could never generate technology this advanced. When coupled with a defense of “thought leaders” as obscenely rich as Steve
Jobs, Elon Musk, and Jeff Bezos, their argument also contends that concentrating capital and power in the hands
of a few billionaires is a small price to pay for the astronomical leaps in innovation from which we all
benefit.

Capitalism’s fan base is not wrong that the iPhone, first released in 2007, is a product of America’s fiercely capitalist economy. I
will also
concede that without the vision of Steve Jobs, Apple’s late CEO and the 110th richest person in the world at his death, there
would be no iPhone as we know it (although it is worth noting that the army of engineers and developers whose
labor actually produced the iPhone might have come up with an equally wonderful smartphone).
Nonetheless, their perspective is deeply misguided. It manages to both underestimate how much
capitalism stifles innovation and misunderstand how much the fundamentals of a socialist economy
make it the better system for stimulating innovation.

Innovation describes a four-step process that creates or ameliorates a thing or way of doing things. It
begins with invention, the design of a device or process that did not previously exist in this form. The invention is
then developed, meaning that it is improved with an eye towards eventual scaling, exchange or introduction on a market,
and external use by others. At the production stage, the invention is built or reproduced. Finally, the invention
is distributed to a wider audience. In our present economy, a minority of the innovation process
happens at the individual level, from lonesome inventors and modern Benjamin Franklins who are able to conjure all sorts of
contraptions in their garage. The majority, however, results from research and development (R&D) paid for by
private firms, and by the public through government agencies, research institutions, and other
recipients of federal and state funding.

The profit motive and exclusive proprietary rights are central to capitalist innovation. By law, private
firms must prioritize the interest of their shareholders, which tends to be interchangeable with making
as much money as possible. Accordingly, investments in any stage of the innovative process must
eventually produce profits. To maximize profit, private firms jealously guard the value of their
invention through regulations and restrictive contracts. Statutes and regulations help protect their
trade secrets. The U.S. Patent and Trademarks Office routinely grants them utility and design patents that “exclude others from making,
using, offering for sale, or selling … or importing the invention” for 20 years after the patent is issued. They enforce licensing agreements that
can limit the uses and dissemination of all or part of their inventions. To further frustrate efforts to innovate on the back of their inventions,
private firms subject their former employees to non-compete agreements that can severely limit them
from using their knowledge and skills on competing projects for a period following their departure. Breaches carry dire
consequences like expensive lawsuits, big money judgments, and other enormous hassles.

By contrast, the public sector innovates under an academic model instead of for profit. Certainly,
earning tenure or an executive position can be lucrative. In some industries, a revolving door gives individuals the opportunity to
innovate in both the private and public sectors throughout their careers. However, innovation in this area is less motivated
by extracting profit, and more so by signifiers of prestige, career appointments, recognition,
publication, project funding, and prizes.
The capitalist model has its perks. At present, private firms raise massive amounts of capital from the government to fund research, but also
from banks, private equity, and wealthy donors. This vast amount of capital can prove lucrative for certain classes of workers. Innovative talent
might accumulate wealth through generous compensation packages, which play an important role in attracting and retaining them.

Private firms also boast a terrifying nimbleness that allows them to push projects and respond to change faster than government institutions.
For instance, firms can turn over staff quickly if their industry in the absence of unions and norms against firing workers at will, other than the
standard prohibitions against discriminatory practices. In other words, without the regulatory and administrative constraints that saddle
publicly funded projects, private firms can move through the innovative process faster.

Another advantage of the capitalist model is that profits—potential and actual—provide some measure of how well a company is innovating.
Particularly, for the many private firms that sell some of their shares to the public on stock exchanges, prices serve as a form of feedback from
investors and the market. Imagine that a publicly-traded retailer announces the imminent launch of an affordable, solar-powered computer
that boasts power and speeds to rival Apple’s newest models. In the hours following the press release, the retailer’s stock value triples. A week
later, while at a tech conference in the Colorado mountains, the retailer’s CEO lets it slip that the first prototype will actually retail for about
four thousand dollars. Unfortunately for the CEO, he was wearing a hot mic. The quote is made public in an article titled “No debt-saddled,
environmentally-conscious millennial will shed $4,000 for a computer!” The stock value immediately plummets by 200 percent.

The original rise in the retailer’s share value communicates that investors believe in the product as a profitable enterprise, and that they see
this type of innovation as a worthwhile pursuit. The drop, on the other hand, suggests that they believe this specific product would be more
marketable and therefore more profitable if it were developed for an audience beyond high-end consumers. The turn in the stock value can
embolden the retailer—through its management, Board of Directors, or shareholders—to revisit its plan to innovate. It also signals to
competitors that their innovation of a similar product could be well received, especially if they can overcome the original product’s weaknesses.

But prioritizing profit is a double-edged sword that can hamper innovation. Owning the proprietary
rights allows private firms to block workers—through anti-competitive tools like non-compete agreements,
patents, and licenses—who put labor into the innovation process from applying the extensive technical
expertise and intimate understanding of the product to improve the innovation substantially. This
becomes especially relevant once the workers leave the firm division in which they worked, or leave the
firm altogether. Understandably, this lack of control and ownership will cause some workers, however passionate
they may be about a project, to be less willing to maximize their contribution to the innovation.

Of course, the
so-called nimbleness that allows firms to make drastic changes like mass layoffs is extremely
harmful to the workers. This is no fluke. The capitalist economy thrives on a reserve army of labor. Inching closer
to full employment makes workers scarcer, which empowers the labor force as a whole to bargain for higher wages and better work conditions.
These threaten the firm’s bottom line. So, the capitalist economy is structured to maintain the balance of power towards the owners of capital.
Positions that pay well (and less than well) come with the precariousness of at-will employment and disappearing union power. A constant pool
of unemployed labor is maintained through layoffs and other tactics like higher interest rates, which the government will compel to help slow
growth and thereby hiring. This system harms the potential for innovation, too.

The fear of losing work can dissuade workers from taking risks, experimenting, or speaking up as they
identify items that could improve a taken approach—all actions that foster innovation. Meanwhile,
thousands of individuals who could be contributing to the innovative process are instead involuntarily
un-employed. This model also encourages monopolization, as concentrating market power gives private firms the most
control over how much profit they can extract. But squashing competition that could contribute fresh ideas hurts
every phase of the innovation process, while giving workers in fewer workplaces space to innovate.

Deferring to profit causes many areas of R&D to go unexplored. Private firms have less reason to invest
in innovations likely to be made universally available for free if managers or investors do not see much
upside for the firm’s bottom line. In theory, the slack in private research can be picked up by the public sector. In reality, however,
decades of austerity measures threaten the public’s ability to underwrite risky and inefficient research. Both the Democratic and Republican
parties increasingly adhere to a neoliberal ideology that vilifies “big government,” promotes running government like a business, pretends that
government budgets should mirror household budgets or the private firm’s balance sheet, and rams privatization under the guises of so-called
public-private partnerships and private subcontractors.

In the United States, public investment in R&D has been trending downward. As documented in a 2014 report from the Information Technology
& Innovation Foundation, “[f]rom 2010 to 2013, federal R&D spending fell from $158.8 to $133.2 billion … Between 2003 and 2008, state
funding for university research, as a share of GDP, dropped on average by 2 percent. States such as Arizona and Utah saw decreases of 49
percent and 24 percent respectively.” Even if public investment in the least profitable aspect of research suddenly surged, in our current model,
the private sector continues to be the primary driver of development, production, and distribution. Where there remains little potential for
profit, private firms will be reluctant to advance to the next phases of the innovation process. Public-private projects raise similar concerns.
Coordinated efforts can increase private investment by spreading some costs and risk to the public. But to attract private partners in the first
place, the public sector has a greater incentive to prioritize R&D projects with more financial upsides.

This is how the quest

for profits and tight grip over proprietary rights, both important features of the
capitalist model, discourage risk. Innovations are bound for plateauing after a few years, as firms
increasingly favor minor aesthetic tweaks and updates over bold ideas while preventing other avenues
of innovation from blossoming. At the same time, massive amounts of capital continue to float into the hands of a few. The
price of innovating under capitalism is then both decreased innovation and decreased equality. The
idea that this approach to innovation must be our best and only option is a delusion.

As I see it, four

ingredients are key to kindling innovation. First, there must be problems requiring
solutions (an easy one to meet). Second, there must be capital and resources available to invent,
develop, produce, and distribute the innovative product. There must also be actual human beings
available to participate in every phase of the innovation process. And fourth, at least some of these
human beings must have the creativity and motivation to participate in the innovation process. The
question isn’t really whether a socialist economy can provide these four ingredients at all (it can) but
rather, whether it can innovate better than a capitalist economy (it can).

Adherents of the capitalist model like to point to boogeymen like the Soviet Union to argue that a
collectivist economy cannot both innovate and create a society in which people do not live on food
rations under authoritarian rule. To be sure, this argument shows little interest in understanding the contextual factors that
have led to extreme poverty and authoritarianism in other nations. It also ignores the extreme poverty in the United States,
and the deeply undemocratic currents in our own system of government. But more importantly, it
completely misses the fact that socialism is a social and economic ideology—not a fixed set of systems
and institutions. Nothing prescribes that socialist ideology must take on a precise form, or that it must look exactly
like models previously attempted. Nor are the conditions that once produced undesirable results—be they historical, geographical,
fiscal, demographical, or other—inherent to the socialist economic model. (The same cannot be said of capitalism. Its
greatest flaw, maximizing profit, is also its primary goal.)
Just a basic search for “types of socialism” on Wikipedia brings up a list of over 30 variants ranging from Maoism to anarcho-syndicalism. These
strains tend to share a set of ideological tenets. According to the economist Al Campbell from the University of Utah, the broadest and most
common list comprises of: self-governance or democracy, the development of human potential, equality, solidarity, and, traditionally,
nationalizing the means of production. Other values on the list have included individuality, privacy, liberty, and autonomy. Inevitably, some
models of socialist economies will be more conducive to achieving all or most of these principles. A subset of these models—including, in my
opinion, market socialism—are particularly conducive to creating the right conditions for maximizing
innovation.
To be clear, socialists have differing and sometimes very strong views about whether markets are compatible with socialism. Reasonable minds
can certainly disagree. But my personal belief is that markets
are politically neutral tools that can be molded to advance
any purpose, like an alphabet with which we can communicate in many languages and genres. It would be absurd to conclude
that because the alphabet wrote a book as odious as Mein Kampf, our utopian society should have no
alphabet. Similarly, markets can be repurposed to advance a socialist principles. Moreover, a market
socialist economy—or any other type of socialist economy—can be hybridized to incorporate features
of what other socialist models do better.
Consider a market socialist economy that somewhat resembles the proposal by economics professors Pranab Bardhan and John Roemer. In this
scheme, firms of a certain size are owned wholly, or in the combination, by the government, the firm’s workers, “other public firms (including
their workers) in the same financial group, together with the main investment bank and its subsidiaries.” The bank, too, is owned by a
combination of these same shareholders although the government is its largest owner if not the only one. The firms are jointly owned through
shares, which are distributed to every citizen (and whomever else we democratically decide to include) with the exception of children, for
whom the shares are held in trust until adulthood.

In this market socialist society, most shares are pooled into highly regulated mutual funds, which then pursue different investment strategies
when trading them on a highly regulated stock exchange. This exchange helps monitor the performance of the firm managers and assess which
innovations are performing strongly. To avoid the concentration of market power and capital, the government sets the bar for how much stock
any stakeholder can hold in any firm and industry. It also sets the minimum and maximum amount of dividends that each person can receive
annually. As the economy grows, dividends can be adjusted to increase by a percentage, or commensurate with inflation. Surplus resulting from
distributing only part of the profits allows the more profitable firms to subsidize innovative, but less profitable, activities. In addition, this
regime does not tolerate anti-competitive contracts like restrictive employment agreements, strict license agreements, and long patents
(although inventions may be attributable to their inventors and may be rewarded through other means like prizes, bonus compensation, or
simply very short patents periods).

The model could incorporate elements of democratically-planned, participatory socialism, which emphasizes democracy and individual
autonomy in the workplace. Economist David Kotz believes that particular features of this model could foster innovation
performance:

First, themain features of the overall economic plan would be determined by a democratic process …
Second, the planning and coordination of the economy would take place … by industry boards and local
and regional negotiated coordination bodies that have representation of all affected constituencies,
including workers, consumers, suppliers, the local community, and even “cause” groups such as environmentalists, job safety activists,
feminists, etc.

Among other topics, these representative boards could vote on compensation minimums and maximums, to prevent innovation from
supporting socioeconomic inequality and unfair social divisions of labor. This
injection of democracy would give ordinary
people a larger say in the direction of the markets, and what areas they think would benefit from more
investment in innovation.

The second ingredient of innovation, capital, is guaranteed in the market socialist economy. Freed of its
neoliberal handcuffs, the government can designate funding towards various innovative projects at a
greater rate than it does now. Banks jointly owned by the government and other non-private
stakeholders would provide entrepreneurs with access to capital for projects through loans with terms
more generous than private lenders offer now. The firms owned by government, worker co-operatives,
ordinary people, and other publicly-owned firms can also raise capital from each other as wealth is
distributed more equally. In such a world, more individuals can pool their resources to invest in particular
innovative projects rather than a recurring cast of millionaires.
Market socialism would easily deliver the third ingredient of innovation: human capital. Such an
economy has no need for a reserve army of labor. While profit is encouraged, its primary function is
increasing the pool of resources and cash distributable to workers and non-workers. It does not come at the
price of providing generous wages, as dividends to shareholders are capped no matter how well the firm performs. In fact, this society could
make a democratic decision to compensate people in positions on the lower band of wages with more in unearned income, out of the same
pool of profits.

When applied earnestly, the principles of socialism are also incompatible with mass incarceration, discrimination, uncompensated caregiving,
highly restrictive immigration policies, and other social practices that exclude large numbers of workers from participating in our capitalist
economy. Adda fairer distribution of public resources among individuals and communities, along with
more free or heavily subsidized goods like education, and a market socialist economy could really see
an increase in the availability and skills in the pool of workers. Freeing more people to join the
innovative process would naturally foster more innovation.

Lastly, innovation can only thrive if the innovation process affords individuals chances to be creative and
the right conditions to motivate them. Studies on what fosters creativity show that workers who rate
highly on creativity indexes perform best when they are given challenging work, a good measure of
autonomy, and supportive and caring supervisors who can provide substantive and constructive feedback. The same study,
however, shows that workers who are by nature less creative tend to be happier in less complex positions. Neither worker is, or should be,
superior to the other. On the contrary, the innovation process has plenty of room for all types of workers with varying degrees of innate
creativity. The core principles of socialism, however, do suggest that this economic system is better suited for supporting creative workers than
capitalism

Of course, to be creative, workers must also feel motivated. Capitalism

tells us that competition and compensation are
the best motivators. While this is inevitably true for some individuals, the case of open source innovation
is proof that motivation can rate high without either. Indeed, for the last three decades, developers and
users have volunteered code to free, collaborative software projects. When researchers asked them
why they devote so many hours of their free time to open source projects, these contributors explained
that they mostly participated because they liked coding. To many, this work felt like an artistic endeavor.
They valued “the freedom and creativity they experienced in defining and managing their open source
work,” and felt good about identifying and solving problems. They enjoyed the reciprocity aspect of the project—
answering a question or solving a problem after the same was done for them. But they also tended to dislike communities with more top-down
control and limited ownership over the project. A number of the coders surveyed reported withholding contributions where these factors were
present. In other words, the factors that motivated them were far closer to the principles espoused by socialists, than by the capitalist
obsession with profit.

What all this tells us is that we

can have our cake and eat it too. Living with inventions like the iPhone and an unequal and
undemocratic economy obsessed with profits is a political choice. It is not our only option. We can strive for a fairer economy,
under a socialist model, without conceding the technological advances that have made our lives easier.
The ingredients are all there. It only takes a little imagination.
 Collapse inevitable
Collapse by 2050 is inevitable---rebound effects, lack of decoupling, large
environmental footprints from renewables, and a lack of viable sequestration
technology make growth unsustainable
Giorgos Kallis 18, ICREA Research Professor at Universitat Autònoma de Barcelona, environmental
scientist working on ecological economics and political ecology, formerly Marie Curie International
Fellow at the Energy and Resources Group of the University of California at Berkeley, PhD in
Environmental Policy and Planning from the University of the Aegean in Greece, et al., 5/31/18, “Annual
Review of Environment and Resources: Research On Degrowth,” Annual Review of Environment and
Resources, Vol. 43, p. 296-298

3. ECOLOGICAL ECONOMICS: THE LIMITS OF GREEN GROWTH¶ Although driven by political, institutional, and discursive processes, growth is
also biophysical. The economic process converts energy, resources, and matter to goods, services, and
waste (34). In theory, it seems possible to decouple material throughput from economic output by
improving the resource efficiency of production. Ecological economists, however, argue that in practice absolute
decoupling is unlikely, even though relative decoupling is common (34). Efficiency should not be
confused with scale (35): The more efficiently we use resources, the lower they cost, and the more of
them we end up using (36). This is, in essence, growth. Just as increases in labor productivity lead to
growth and new jobs, not to less employment, increases in resource productivity increase output and resource
use (37). Capitalist economies grow by using more resources and more people, more intensively. Accelerating this is unlikely to
spare resources.¶ Growth can become “cleaner” or “greener” by substituting, for example, fossil fuels with
solar power, or scarce, environmentally intensive metals with more abundant and less intensive metals.
But new substitutes have resource requirements, and life-cycle impacts that cross space and time. Energy
is a vital source of useful work (38); growth has been possible because fossil fuels did things human labor alone could not do. Ending the use of
fossil fuels is likely to reduce labor productivity and limit output (34). Solar
and wind power are constrained only by their
rate of flow, but unlike fossil fuels, they are diffuse—more like rain than a lake (3). To collect and concentrate a diffuse
flow of energy, more energy is necessary and more land is required. The EROIs (energy returns on energy
investment) of renewable energies are between 10:1 and 20:1, compared to more than 50:1 for earlier deposits
of oil and coal (39). An economy powered by a diffuse energy flow is then likely to be an economy of lower
net energy and lower output than one powered by concentrated stocks (3). Land use for solar or wind
also competes with the use of land for food production, and rare materials are necessary for
infrastructures and batteries that store their intermittent flows, with significant environmental effects.¶ Historical
data corroborate ecological economic theory (40). Ayres & Warr (38) find that the use of net energy after
conversion losses explains a big portion of the United States’ total factor productivity and economic
growth. At the global level, GDP and material use have increased approximately 1:1. Carbon emissions
have increased somewhat slower than GDP, but still have increased (34). This is unlikely to be a
coincidence. Exceptions may exist, but cross-panel data analysis shows that overall, 1% growth of a national economy is associated with
0.6% to 0.8% increase in its carbon emissions (41) and 0.8% growth in its resource use (42). ¶ Global resource use follows
currently the “collapse by 2050” scenario foreseen in the “Limits to Growth” 1971 report (43–45). Domestic material
use in some developed OECD economies has reached a plateau, but this is because of globalization and
trade. If we take into account imported goods, then the material requirements of products and services
consumed in OECD countries have grown hand in hand with GDP, with no decoupling (46). For water use,
the effects of growth overwhelm any realistic savings from technologies and efficiency (47); water
footprints have increased even in regions such as California where water withdrawals were stabilized (40). ¶ Carbon emissions
in some EU (European Union) countries have been declining, even after trade is taken into account, suggesting some substitution
of fossil fuels by cleaner energies. [Although recession also played a role (34).] These declines are nowhere near the 8–10%,
year-after-year reductions in carbon emissions required for developed nations under scenarios compatible
with a 50% chance of limiting warming to 2◦C (48). Further reductions will be harder to sustain once one-
off substitutions of oil or coal with natural gas are exhausted (34). ¶ Resource use or carbon emissions are
a product of the scale of the economy (GDP) times its resource or carbon intensity (kg/GDP or kgCO2/GDP). With 1.5% annual
increase in global income per capita, carbon intensity has to decline 4.4% each year for staying within 2◦C; with 0% growth, carbon intensity has
to fall 2.9% each year (49). In the period 1970–2013, the average annual reduction rate for carbon intensity was less than 1.5%—and this gets
harder to sustain as the share of carbon-intensive economies in global output increases (49). As Jackson (50) showed in his seminal work, it
is
practically impossible to envisage viable climate mitigation scenarios that involve growth. This calls for
research on managing, or prospering, without growth (50, 51). ¶ Some scenarios deem possible meeting climate
targets while sustaining growth, but these generally assume after 2050 some sort of “negative emissions
technology,” geo-engineering or otherwise. According to a recent Nature editorial, these technologies remain
currently “magical thinking” (52). Clean energy investments can stimulate the economy in the short run,
but in the long run growth may be limited by their low EROIs. Studies suggest that economic growth requires a minimum
EROI of close to 11:1 (53). Less EROI means less labor productivity, and hence less growth. Indeed, “Limits to Growth” scenarios do not predict
growth ending when resources are exhausted but, rather, when the quality of resources declines to such an extent that further extraction
diverts more and more investment away from productive industry (44).¶ Degrowth is defined by ecological economists as an equitable
downscaling of throughput, with a concomitant securing of wellbeing. If there is a fundamental coupling of economic activity and resource use,
as ecological economics suggests there is, then serious environmental or climate policies will slow down the economy. Vice versa, a slower
economy will use less resources and emit less carbon (40). This is not the same as saying that the degrowth goal is to reduce GDP (54); slowing
down the economy is not an end but a likely outcome in a transition toward equitable wellbeing and environmental sustainability. ¶ Advancing
a position of “a-growth,” van den Bergh (54) proposes ignoring GDP and implementing a global carbon price, indifferent to what its effect on
growth turns out to be. Ignoring GDP is a normative position—but at the end, the economy will either grow or not, and if it does not, then there
should be plans for managing without growth. Given how entrenched GDP growth is in existing institutional and political structures, a-growth
approaches must be advanced as part of broader systemic change (55).¶ Is it possible to secure a decent standard of living for all while
throughput and output degrow? Substantive evidence indicates that prosperity does not depend on high levels
of production and consumption. Kubiszewski et al. (56) find that the Genuine Progress Indicator, an indicator that includes
environmental and social costs alongside output, peaked in 1978, despite subsequent global growth. A similar indicator, the Index of
Sustainable Economic Welfare, has stayed at the same levels in the United States since 1950, despite a threefold growth of GDP (57). ¶
Wealthier countries on average have higher levels of life expectancy and education than poorer ones, but above
a certain level of
GDP, income does not make a difference in wellbeing—equality does. Satisfactory levels of wellbeing are
achieved by countries such as Vietnam or Costa Rica at a fraction (one-third or less) of the output, energy, or
resource use of countries such as the United States. Even the lower levels of resource use of mid-income countries, however,
would not be sustainable if they were to be generalized to the planet as a whole. No country currently satisfies social wellbeing standards while
staying within its share of planetary boundaries, suggesting that radical changes in provisioning systems are necessary (58). ¶ Wealthier people
within a country are on average happier than others, but in
the long run, overall happiness does not increase as a
country’s income rises (59). Nuances of this income-happiness paradox depend on the sample of countries included and how one
defines and asks about happiness. Within societies, individuals with higher incomes evaluate their lives as better than others, but do not enjoy
better emotional wellbeing (60). Income determines social rank, and rank affects individuals’ assessments of their lives. Growth does not
change relative rank or relative access to positional goods (those signifying position) but it does inflate
expectations and prices of material goods, increasing frustration (61). Relative comparisons matter for personal
wellbeing in low-income and high-income countries; for both, the more equally income is distributed, the happier people are (62). Pro-
environmental behaviors and sharing are also strongly associated with personal wellbeing (63). This
suggests that an economic contraction may not impact wellbeing negatively if accompanied by redistribution,
sharing, and value shifts (34).
Solvency
 IPR Bad for Climate

Strengthening IPR puts the US in breach of international obligations, which collapses

climate treaty implementation globally – IP is the bottleneck
Zhou 19 [Chen, Assist Prof in the Law School of Xiamen Univ, “Can intellectual property rights within climate technology transfer work
for the UNFCCC and the Paris Agreement?” International Environmental Agreements: Politics, Law and Economics 19.1, p.108-10, JCR]

Climate change is a well-researched issue both scientifically and in terms of legal scholarship. It is widely recognized that technological
solutions play an important role in climate mitigation and adaptation. Due to historical and practical reasons,
relevant technologies are distributing unevenly across the world.1 To combat climate change, the wide
and rapid diffusion of such technologies is in the global self-interest (Watal 2010: 14). There is evidence that
technology transfers increase the incentives for participation in multinational environment
agreements (MEAs) (Shephard 2007: 10548). In the context of climate change, the United Nation Framework Convention on Climate
Change (UNFCCC 1992) requires industrialized countries to facilitate technology transfers to developing
countries to enable them to minimize their emissions of greenhouse gas emissions (GHGs). The 2015 Paris
Agreement (Paris Agreement 2015) emphasizes this once more as it further commits the Parties to strengthening
cooperation on climate technology. However, in reality, state-of-the-art climate mitigation and adaptation
technologies are not being automatically transferred through business-as-usual practices where traditional
legal protection of intellectual property (IP) operates under the Climate regime. In the light of the growing urgency of climate risks and
damage and the emerging recognition of the potential violation of human rights, it is critical to examine what is the key bottleneck to
technology transfer and how this can be addressed. Hence, this article explores how IP laws can be used by climate change
policymakers in the post-Paris era to enhance technology transfer. To capture the entire picture, I use a statutory perspective to summarize and
analyse the UNFCCC (see Sect. 2) and the WTO (see Sect. 3), the legal setting in which climate technology transfers operate, and explore
possible solutions to situate IP in the context of climate change. In the context of climate change, technology transfer is
predominantly regulated by the UNFCCC. Designed as a broad framework to comprehensively deal with the climate crisis, the
UNFCCC has, since 1992, endeavoured to reduce GHG emissions through a range of solutions.2 As early as 1992, the UNFCCC shed light on
technology as a solution by framing technology development and transfer as an essential international assistance tool. Two core articles were
laid down to facilitate technology transfer: Article 4.5 and Article 4.7. Article 4.5 is cited as a classic clause and has been placed at the heart of
the technology transfer commitment system.3 It obliges the developed country Parties of the UNFCCC (Annex I countries) to
commit to technology transfer in order to fulfill the principle of common but differentiated
responsibilities and respective capabilities. This principle aimed at substantive equity, international solidarity and
assistance. To further confirm this commitment, Article 4.7, known as the conditionality clause, made the fulfilment of the
developing countries’ commitments conditional on actions taken by developed countries.4 Under this
Article, the developing country Parties could suspend the Convention’s implementation if the developed
country Parties did not provide technology transfer and financial assistance. Therefore, it can be said that the
conditionality clause makes technology transfer absolutely indispensable for the effective
implementation of climate change agreements. A violation of the provisions on technology transfer
might consequently constitute a material breach and would conflict with the purpose and objective of
the Convention (Verhoosel 1998: 66).
IPR makes fast progress on green tech impossible – threat of infringement blocks
research
Cayton 20 [Samuel, Adjunct Prof at Seattle Univ School of Law, legal intern at the
Media Law Group, “The ‘Green Patent Paradox’ and Fair Use: The Intellectual Property
Solution to Fight Climate Change,” Seattle Journal of Technology, Environmental &
Innovation Law 11.1, p.227-8, JCR]
Some proposals have called for the U.S. to gear its patent system toward promoting environmental
protection. One proposal creates a specific department for green patents that aims to fix certain shortcomings within the USPTO.109 As
demonstrated in KRS International Co. v. Teleflex, Inc., the non-obvious requirement is strict and may inhibit innovation.110 Though the USPTO
already covers patents for green technology, a specialized department could relax the non-obvious requirement for green patents, shorten the
period of exclusivity, include a review from the EPA, and reconsider the requirement for novelty.111 The categories of patents within this
sector may include increasing energy efficiency, replacing fossil fuels, capturing CO2, and other solutions.112 However, because
such
solutions would only impose slight modifications to current patent law, they would only promote
incremental changes at best.113 Obtaining a patent is a lengthy process and the need to issue patents quickly is critical. In
December 2009, the USPTO created a fast-tracking system for green technology patents called the “Green Technology Pilot Program.”114 With
this program, an applicant was able to have their patent receive special examination if it pertained to an area of environmental protection such
as GHG reduction.115 Rather than loosening doctrinal requirements for the patent, this proposed program addresses the urgency to get green
patents issued. However, at the end of 2011, the USPTO announced that the program would be eliminated over the next few months.116
Today, the USPTO’s website directs applicants to other fast-tracking programs, although not specifically geared toward green technology.117
While looseningpatent requirements, shortening the length of exclusivity, and speeding up the
application process are important steps, these adjustments do not alleviate the Green Patent Paradox; the
threat of patent infringement from an NPP would remain and continue to hinder the progress needed
to create a high volume of green technology for an environmentally sustainable economy.

Turn: Antisocial innovation: most innovations produce no social value and some
actively harm people- bump stocks, tobacco companies, pricing algorithms,
surveillance technologies, and harmful AI prove.
Buccafaso & Weinstein, Duke University, School of Law, Professor 23 [Christopher & Samuel,
Georgia Law Review, 1/29/23, “Antisocial Innovation”, [Link] DOA 7/21/24, MP]

According to all these perspectives, the biggest concern with innovation is that society might not get enough of it.
Without massive government funding or monopolistic patent pricing, we may miss out on the next round of innovations that will increase
economic growth, propel society forward, and improve human well- being. But
what if that’s not the whole story? What if it
turned out that a substantial portion of innovative activity was actually bad for society as a whole? In this
Article, we make just this argument. While we are, of course, thrilled to be able to research and write this Article on internet-enabled
computers, with access to clean water, indoor plumbing, antibiotics, vaccines, and a host of other modern conveniences, we don’t view these
transformational innovations as typical. No
doubt, many innovations have radically transformed human lives,
prolonging and improving them. But we shouldn’t let these breakthroughs distort our view of innovation
as a whole. Vanishingly few innovations dramatically improve society, while many don’t really affect it at
all. And, we argue, a distressingly high number make life worse. We call these antisocial innovations.

Almost no innovations are purely antisocial, in the sense that they produce only harms and no benefits. Bumpstocks, which enable semi-
automatic firearms to operate like fully automatic weapons, may come close, in the sense that they have no meaningful military use
and exist primarily to evade regulation of machine guns.25 More typical are innovations where the benefits to one group
are outweighed by the costs to other interests. Consider the following examples.
When California prohibited cigarette manufacturers from adding flavorings, including menthol, to their products,
some producers adopted a synthetic chemical that generates menthol’s cooling sensation but that does
not add unlawful flavor.26 Obviously, this change is valuable for the cigarette manufacturers, but it is almost
certainly going to reduce the effectiveness of the flavor ban and, accordingly, social welfare.27

Pricing algorithms are another example. For centuries, merchants relied on their own judgment to set prices for their goods.28
They were able to consider their costs, estimate their customers’ willingness to pay, and perhaps apply a limited knowledge of what their
competitors were charging. Before the twentieth century, merchants typically did not advertise their prices; instead, prices were based on the
outcome of bargaining with individual customers.29 With the advent in the twentieth century of convenient methods for displaying and
changing prices, most retail prices were standardized: almost all consumers paid the same price for the same goods.30 Now, many sellers,
including the most powerful merchants—Amazon, Walmart, and the big airlines—rely on computer programs to set
their prices.31 These pricing algorithms generate prices based on traditional inputs like cost of goods and demand, but they can also
account for the prices of multiple rivals, the time of day, day of the month, and time of year a sale is made, and, with the advent of big data,
they can personalize prices for individual consumers.32 This
technology is a huge step forward for sellers, but on the
whole consumers will almost certainly pay more for algorithmically priced goods.33 The same is also true
for apartment rents, which may be getting more expensive because large landlords use algorithms to set prices.34 A significant
wealth transfer from consumers to sellers is the most likely result, reinforcing already alarming wealth
distribution disparities in the United States.

Consider too the vast array of surveillance technologies that companies are employing in the workplace to track laborers’
motion, bathroom breaks, keystrokes, and eye movements.35 While firms may claim that surveilling workers will make them more efficient
and, ultimately, reduce consumer prices, technology’s impact on workers’ health, privacy, and autonomy is alarming. Employees at Amazon
warehouses face greater physical risks than do police officers, 36 and surveilling workers’ behavior is especially damaging for labor organizers,
women, and people from historically marginalized communities.37

Finally, take artificial intelligence (AI). Recent stunning breakthroughs in AI have created tools, like ChatGPT, that can mimic
human speech and writing or create accurate images based on text.38 AI is likely to have a range of positive impacts for
society, including automating mundane tasks humans currently perform, creating new forms of art, and helping solve challenging technical
problems in science and medicine. But AI has great potential to harm society. Its ability to take on many human
tasks may lead to mass unemployment. And AI machines are likely to act in unpredictable ways, even in
ways that physically harm humans. Those who know AI best are among the most concerned. A group of
leading AI experts, from Google, Open AI, and other firms involved in developing the technology, signed a statement warning that
“[m]itigating the risk of extinction from AI should be a global priority alongside other societal-scale risks
such as pandemics and nuclear war.”39

As these examples attest, many

innovations are, on balance, harmful to people. While we don’t deny the value of
lifesaving breakthroughs like the Covid-19 vaccine, it
is important for policymakers to recognize that many, and
perhaps most, innovations do not fit the rosy image offered by politicians and tech gurus. This Article begins
to challenge that image, and it offers a renewed vision of policymaking in a world where innovation can be beneficial but where it can just as
easily be awful.
 D.O.C/ US IPR Bad 1NC
The PTO has poor enforcement along with loopholes in its wordings that makes
arbitrary rejections common.
Hoffman 15 (Louis Hoffman, patent attorney licensed to practice law in California and Arizona, before
numerous U.S. District Courts, before the Federal Circuit and Ninth Circuit Courts of Appeals and in the
U.S. Patent Office, “The USPTO harms the economy with over-aggressive, haphazard Alice-based 101
rejections”, [Link]
application-of-alice/id=65810/, 2/7/15) CJun
The Patent Office solicited comments on its July 2015 Update on Subject Matter Eligibility (Section 101), and 30 comments were submitted in
late October and are available on the PTO’s website. Comments here. Ninety percent of the commenters have suggested
that the PTO examiners are issuing “abstract idea” Section 101 rejections of patent applications, using
Alice Corp. Pty. Ltd. v. CLS Bank Int’l, 134 S. Ct. 2347, 2356 (2014), too aggressively or too haphazardly or
arbitrarily. The same result happened with comments received before the Guidance. A common thread is the lack of
constraint on examiners in making Alice-type rejections, particularly in computer and business-
method arts, and the lack of consistency and predictability in this area. There is a widespread
concomitant concern that Section 101 can be easily applied to prevent patents from issuing in wide
swaths of technology. I share those concerns. I have spoken in the last several months to a number of experienced examiners
who are tasked with making (or declining to make) Section 101 rejections. One common examiner remark is that, despite the
Section 101 training and the July 2015 Guidance Update, PTO material still gives examiners the opening
to make rejections any time they want to do so. Examiners say that they can always find some language
in the PTO explanations, categories, or examples, which they can apply or analogize to virtually any
claim an applicant wishes to patent. The results are that patent allowance rates have plummeted, particularly in Group 3600,
which examines nearly all computer-related or Internet-related inventions, as several recent published articles have shown statistically, both at
the Board level and in the examining corps. E.g., wonderland-statistics-alice. I have heard several high-ranking PTO officials say that the high
rejection rate might be temporary. They reason that it is understandable that there would be many rejections of patents challenged at the
Board through CBM procedures that contain claims written pre-Alice, plus the “bad patents” would likely be challenged first. Likewise, there
could be many examiner rejections of applications first written pre-Alice. But the rejection rate shows no sign of slacking, so that explanation
doesn’t really fly. A more cogent reason for low allowance is that the
Office’s training materials provide little discipline or
explanation of circumstances in which an examiner should not make a 101 rejection. Coupled with
supervisor focus on not “missing” a proper Alice-type rejection, the cautious examiner can be
expected to make rejections wholesale, and “stick” to rejections more often than not.
 D.O.C/ US IPR Bad 2NC
Domestic IPR protections kills innovation by supporting multinational corporations
over small businesses and inventors.
Morinville 16 (Paul Morinville, Managing Director of US Inventor, Inc., which is an inventor
organization working in Washington DC and around the US to advocate for strong patent protection for
inventors and startups, “Cuozzo, Phony IPR Statistics and the Death of the American Inventor”,
[Link] 6/26/16)
CJun
Any way you cut it, IPR kill rates are devastating and the cost is high. That means most contingent fee attorneys have left the patent business
altogether leaving a huge swath of unenforceable patents. In effect, IPR’s transfer
the property rights of the small
inventors to large international corporations free of charge. There are few things more anti-American
than taking the toils of the poor and giving it to rich international corporations. If you think I’m exaggerating,
here is an actual email sent this week from an independent inventor to his marketing consultant: I would like to cease any further contact &
prospecting regarding my XXXXX design. After careful consideration, review and thought, my current belief is that the USPTO has become a
shopping mall for big business to take, without penalty, private inventors intellectual property. The Patent Office has so weakened protective
laws that getting a patent may no longer make sense for people like me. That’s my conclusion, anyway. The last thing I want to do is hand my
idea to someone who could out spend me in a rigged court process for the next 10 years where I would probably lose – it’s just not a
reasonable plan anymore. Not trying to be negative, just realistic. It is what it is. He is pulling his invention off the market. He is cutting his
losses. This
anti-American, anti-innovation America Invents Act is killing small inventors. That is just a
fact. Congress and the Supreme Court believe that a cartoon character is killing innovation. They
cannot be more wrong. They themselves are killing innovation. But back to my point. The battle of Cuozzo,
and patent reform in general, is not between the tech industry and the pharmaceutical industry. The
battle was started by wealthy multinational tech companies led by Google who, by using their huge
market and deep pockets, massively commercialize technology they did not invent to take control of
emerging multi-billion dollar markets. Once a tech market is taken, it is nearly impossible to unseat the
incumbent, unless, of course, you have a patent and that patent can be defended. So these huge
companies bought Congress to create law that destroyed hundreds of years of patent law
repositioning it against the very people who invent most of the new technologies we all use, small
tech startups and inventors. Congress and the Supreme Court have now ensured that the big stay big
and the small do not disrupt their highly profitable cabal with the nuisance of patent rights. If you have
any questions about who is fighting who, just look at the who’s who of Big Tech and large multinational corporations signed up on this amicus
brief against Cuozzo. The list includes Google, LinkedIn, eBay, Dell, Cisco, Cannon, Toyota, JC Penny, and many other multibillion-dollar
international corporations. It also includes lobbying organizations like the Internet Association, the Alliance of Automobile Manufacturers, and
the National Retail Federation whose combined members make up most of the Fortune 500. There are many others, mostly international tech
companies. I challenge you to identify one that is not a large corporation with an international scope. Compare that list to the small startups
and inventors who signed this amicus brief supporting Cuozzo, himself a bright young 19 year old when he invented the patent in question.
These amici are inventors, inventor clubs and startups. They are the people out in their garages toiling, tooling and transforming their big idea
into the next big invention. They do this in hope of achieving their version of the American Dream to invent something new that people can
enjoy and so they can profit for their efforts. They are your local auto mechanic, schoolteacher, mother, entrepreneur, geek and just about any
other regular American you might see on Main Street in any normal American town. They are the little people. This battle is not tech against
pharma. It
is big and powerful multinational corporations led by Google against small inventors and
startups. Pharma is the odd man out and stuck in the fight for other reasons made possible by IPRs, like
an emerging hedge fund industry making millions from short selling their stock and then challenging
their patents to an IPR in an effort to crash the stock price and collect on the short sale. The battle of Cuozzo
and the war of patent reform is big against small. Corporate oligarchs in bed with politicians against Joe the mechanic. Cronyism against our
Republic. International corporatism against the American Dream and the American story. Unfortunately, this Cuozzo battle is lost, but the larger
war must be won lest we lose our innovation economy and the American Dream.
USPTO Fails
 USPTO Bad – Patent Board/NHK-Fintiv
NHK-Fintiv rule makes the patent board ineffective. Can’t solve without repealing the
rule
Max Baucus (He served as Chairman of the U.S. Senate Committee on Finance from 2001 until 2003,
and again from 2007 until 2014) “It’s Time for the U.S. to Tackle Patent Trolls” September 16, 2022
[Link]

The first step Director Vidal must take is to fully repeal the NHK-Fintiv rule, which was unlawfully implemented by her
predecessor. This rule makes it more difficult for innovators targeted by patent trolls to have expert judges
at the USPTO determine whether the patent being asserted against them is valid. Those expert judges exist to give businesses and innovators
targeted by patent trolls a cheaper, more reliable alternative to litigation; limiting their use is a step backwards. In 2011, Congress
recognized that our patent system needed a significant overhaul and a large bipartisan majority in the House and Senate passed the Leahy-
Smith America Invents Act (AIA). The AIA made a number of changes, shifting the U.S. from a first-to-invent to a first-to-file patent system and
creating the review process at the Patent Trial and Appeal Board (PTAB), which allowed expert judges to review patents of questionable
validity. The AIA had a large positive impact on U.S. economic growth and after 2011 patent troll litigation began to decline. But this
progress was interrupted by the previous USPTO director, Andrei Iancu, who unilaterally made the Fintiv
rule precedential in 2020. Under Fintiv, petitions for PTAB review are denied based on factors unrelated to a
petition’s merits. Primary among them, PTAB review is denied if there is parallel litigation already in progress involving the
patents in question. For example, a startup gets notified that an LLC that they have never heard of, and that they can’t find much information
about, is suing them for patent infringement. If
this litigation is expected to begin ahead of a potential PTAB review,
then review is declined because litigation is already in process. This is especially troubling because PTAB
incorrectly evaluates future trial dates in more than 90% of cases. When Congress passed the AIA, we intended for
review to be in place as a protection for businesses and innovators who were in this exact position, actively facing infringement claims. For
review to be denied due to parallel litigation, it is removed as an option in the instances where it is most valuable. Fintiv was supposedly
instituted in the name of efficiency, with the PTAB not getting involved in disputes that the courts were already handling. But, particularly in
highly technical matters, PTAB judges are far better equipped to handle disputes than the courts are and needing to
proceed with litigation opens up defendants to a massive financial burden and increased risk. In essence, Fintiv has forced more
companies, including everyone from small startups to large manufacturers, to spend more of their time and resources
defending themselves in expensive litigation with the possibility of disastrous outcomes, despite having done nothing wrong.
Repealing Fintiv would give innovators currently under siege a fairer, less expensive, more efficient option for resolving infringement disputes.
It would allow them to spend less of their money hiring lawyers and invest more of it creating jobs, lifting wages, and developing more of the
cutting-edge products that catalyze our economy and improve our quality of life.
NHK – Fintiv causes many patents to be denied. Undermines the ability of the
affirmative to solve through lack of certainty and patents banned
SHEILA MORTAZAVI “NHK-Fintiv Frustration: Status of the Current Challenges and the Uncertain Fate
of the PTAB’s Discretionary Denial of IPRs” 2023 [Link]
frustration-status-of-the-current-challenges-and-the-uncertain-fate-of-the-ptabs-discretionary-denial-
of-iprs/
Several challenges have been made recently to the Patent Trial and Appeal Board’s (“PTAB’s or Board’s”) controversial practice of denying inter
partes review (IPR) petitions based on the status of parallel infringement litigation involving the same claim. The so-called NHK-Fintiv
rule, resulting from Board-designated precedential cases in 2018 and 2020, allows the PTAB to decline review of a patent
based on several discretionary factors, including whether the patent is being asserted in ongoing parallel
district court litigation, presumably to prevent the inefficient use of the Board’s resources. The challenges to the NHK-Fintiv rule have
been unsuccessful to date, with appellate courts holding that they lack jurisdiction to review institution decisions, and the Supreme Court in
January 2022 denying certiorari with respect to two of those challenges. We examine below the current status of the various challenges, and
the uncertain fate of the NHK-Fintiv rule. NHK-FINTIV FRAMEWORK: Established under former USPTO director Iancu, the NHK-Fintiv rule
resulted from the Board’s precedential opinions in NHK Spring Co. v. Intri-Plex Techs.1 and Apple Inc. v. Fintiv,2 which set forth the
circumstances under which the Board may exercise its discretion to deny institution of IPRs. The PTAB considers the following six factors for
discretionary denials under 35 U.S.C. § 314(a): (1) whether the court granted a stay or evidence exists that one may be granted if a proceeding
is instituted; (2) proximity of the court’s trial date to the Board’s projected statutory deadline for a final written decision; (3) investment in the
parallel proceeding by the court and the parties; (4) overlap between issues raised in the petition and in the parallel proceeding; (5) whether
the petitioner and the defendant in the parallel proceeding are the same party; and (6) other circumstances that impact the Board’s exercise of
discretion, including the merits.3 NHK-FINTIV CHALLENGES: The NHK-Finitiv rule has been the subject of numerous challenges from technology
and pharmaceutical companies. On August 31, 2020, Apple, Cisco, Google and Intel (“plaintiffs”) filed a lawsuit in the Northern District of
California, arguing that the NHK-Fintiv rule violated the Leahy-Smith America Invents Act (“AIA”), which created the IPR regime, and the
Administrative Procedure Act (“APA”), which governs the process by which federal agencies develop and issue regulations.4 Plaintiffs argued
that by applying the NHK-Fintiv rule, the Director exceeded his statutory authority and thus violated the AIA, since nothing in the AIA authorizes
the Director to deny IPR petitions based on perceived overlap with pending infringement litigation involving the same patent claims.5 According
to the plaintiff, the fact that AIA requires IPR petitions to be filed within a year of a company being sued reflects that Congress carefully
calibrated the one-year limit to ensure that IPR is not used for purposes of delay, while also giving infringement defendants an adequate
opportunity to investigate the claims asserted against them in litigation.6 Plaintiff also argued that the
NHK-Fintiv rule should be
overruled because it is arbitrary, capricious, and violates the AIA with inconsistent outcomes in
different cases that make it hard to know how the factors will be applied.7 Finally, Plaintiffs argued that the NHK-
Fintiv rule should be held unlawful and set aside because it is a final, binding rule that substantially alters the rights and interests of IPR
petitioners without any notice-and-comment rulemaking.8 USPTO (“defendant”) argued that the plaintiffs’ claims are not justiciable under the
APA. The California Court granted defendant’s motion to dismiss, finding that the case is precluded by an AIA provision stating that decisions on
whether to institute IPR are “final and nonappealable.” 9 The court reasoned that the Supreme Court in Cuozzo determined that issues closely
related to the Director’s decision to institute an IPR petition are non-appealable under 35 U.S.C. § 314(d), and that a court will lack jurisdiction
to review such cases.10 The court also relied on the Supreme Court’s decision in Thryv, which held that the USPTO’s decision to implement the
time bar provision of the IPR regime under 35 U.S.C. § 315(b), so as to refuse institution of an IPR, was also not reviewable since the “time
limitation is integral to, indeed a condition on, institution,” and a lawsuit challenging the time bar was merely “an ‘ordinary dispute about the
application of’ an institution-related statute.”11 Relying on Cuozzo and Thryv, the court found that the NHK-Fintiv rule establishes factors that
are “closely related to [the Director’s decision] whether to institute [IPR],”12 and that it “cannot deduce a principled reason why preclusion of
judicial review under § 314(d) would not extend to the Director’s determination that parallel litigation is a factor in denying IPR” under §
314(a).13 The court did note that the Supreme Court in Cuozzo stated that § 314(d) may be reviewable if it implicated “constitutional questions
. . . of interpretation that reach, in terms of scope and impact, well beyond [§ 314(d)],”14 and that institution decisions that implicate due
process concerns or jurisdictional violations are not “categorically precluded” from judicial review under § 314(d).15 Nevertheless, the court
found that plaintiffs’ challenges did not rise to the level of a constitutional violation warranting review. An appeal is currently pending before
the Federal Circuit. While the case was still pending, the USPTO requested comments on discretion to institute trials in IPR and post grant
review (PGR) proceedings, and specifically solicited comments on whether rulemaking was necessary and the type of rules it should adopt. The
USPTO did not itself propose any rules.16 The USPTO received over 800 submissions, and published a summary in January 2021.17 On July 28,
2021, Apple Inc. petitioned the Supreme Court for relief after the Federal Circuit refused to review the Board’s discretionary denial of an IPR.18
Apple had argued that it should be able to appeal the denial of institution based on the Fintiv factors, and that, in the alternative, the Federal
Circuit should grant mandamus to review the denials. Apple also contended that the language of § 314(d) is not an absolute bar that prevents
arguments that the PTAB’s denial of an IPR petition rested on grounds that exceed the agency’s statutory authority, are arbitrary and
capricious, or fail to comply with basic procedural requirements of the APA.19 The government had argued that Apple cannot establish the
“clear and indisputable right” to a different outcome that the mandamus standard requires. The Federal Circuit held that it lacks jurisdiction to
hear the case.20 On August 9, 2021, Mylan Laboratories urged the Supreme Court to strike down the NHK-Fintiv rule and argued, amongst
other things, that the rule is unlawful and renders Congress’s one-year period for seeking IPR illusory.21 Mylan’s IPR had been denied by the
USPTO based on the status of pending litigation against a different Hatch-Waxman litigant, not Mylan. In its petition, Mylan also took issue with
Federal Circuit’s position that PTAB
institution decisions are not subject to appellate review, which it said
“effectively handed the director and the board carte blanche to deny IPR petitions for any random
(and potentially unlawful) reason they can dream up.”22 Mylan also highlighted that the rule has encouraged patent
owners to file suits in districts that promise a fast time to trial, such as Waco in the Western District of Texas, partly to avoid PTAB review of the
patents.23 The Supreme Court denied both Mylan’s and Apple’s petitions on January 18, 2022. On, November 29, 2021, US Inventor
Incorporated, a non-profit, filed an appeal with the Fifth Circuit arguing that the district court wrongly concluded that the group does not have
standing to bring an action challenging the lack of agency rulemaking, seeking formalizing of NHK-Finitiv rule through notice and comment
rulemaking.24 The district court had ruled that US Inventor did not face any injury and was generally complaining about the system which
Congress had established.25 On December 15, 2021, Intel filed a petition at the Supreme Court arguing that the NHK-Fintiv rule is arbitrary and
capricious and requires the Board to deny IPR petitions after speculating when the infringement trial will conclude, the calculation of which is
mostly incorrect considering trials are often rescheduled.26 In its appeal, Intel states that “by treating such decisions as if they are immune
from judicial review, the Federal Circuit’s position endangers a tool that Congress determined to be essential to the integrity of the patent
system.”27 Unified Patents, the Alliance for Automotive Innovation and Cable Television Laboratories have filed an amicus brief supporting
Intel’s petition. The petition is currently pending FATE OF NHK-FINTIV RULE: While the Supreme Court has thus far not taken up any of the
challenges to the rule, there has been proposed legislation from senators that would nullify the NHK-Fintiv rule altogether. Last year, Senators
Patrick Leahy and Republican Senator John Cornyn introduced a new bill, the Restoring the America Invents Act, arguing against the use of
discretionary denials at the PTAB. The new nominee to lead the U.S. Patent and Trademark Office, Kathi Vidal, has promised to look into the
PTAB’s practice of discretionary denials and engage with stakeholders. In her written response to Senate Judiciary Committee members, Ms.
Vidal stated “PTAB decisions are not themselves rules within the meaning of the APA and the decision to deem a PTAB decision as precedential
is not a rule within the meaning of the APA, so notice-and-comment rulemaking is not required to make the precedential designation.”28
Recently, a group of legal executives from companies like Intel, Fresenius Kabi, Hyundai Motors, Netflix and several others collectively wrote to
the Secretary of Commerce, Ms. Raimondo, urging her to immediately repeal the
NHK-Finitiv rule because it unfairly denies
access to IPR proceedings and effectively wrote out vital protections out of the law without any public notice
or comment.29

NHK – Fintiv kills patent applications

Janelle Barbier “THE NHK-FINTIV RULE: PATENT LAW’S WHACK-A-MOLE” 39 Santa Clara High Tech. L.J.
339 (2023) [Link]

Since their inception in 2013, inter partes review proceedings have steadily gained in popularity, killing
patents at an astounding rate. It is no wonder that defendants flee to the PTAB when staring down
costly patent infringement suits in federal court. But an IPR institution is not a right––it is at the sole
discretion of the USPTO Director. And despite increased petitions for IPR over the past few years,
institution rates have declined. The reason for fewer institutions seemingly lies with the PTAB’s decision
to employ certain factors in determining whether public policy weighs against IPR institution. This
precedential doctrine—known as the NHK-Fintiv Rule—was created by the PTAB without any formal
procedure. Following the Federal Circuit’s rulings that decisions relating to IPR institution are not subject
to judicial review, the Rule has resulted in a frenzy of litigation and related pleas to the Supreme Court.
While IPR institution denials continue to accumulate, accused infringers are engaged in a game of
Whack-a-Mole with the Rule. Instead of continuing to attack the Rule as arbitrary and capricious,
litigants should explore other avenues offered by the Administrative Procedure Act and the
Constitution—these attacks on procedure may be the key in whacking the Rule for good. Further, the
ramifications of the Rule on patent-specific forum shopping and litigation by nonpracticing entities are
profound. For these reasons, the Supreme Court should heed the call by technology companies to clarify
when judicial review is permissible for acts associated with discretionary agency action.
 USPTO Fails – Chevron Deference
The Supreme Court’s recent decision to overrule the Chevron doctrine undermines the
ability of the affirmative to solve – every decision will get caught up in lawsuits and
likely overturned
James Bertino , Benjamin C. Stasa, Ph.D. Candidate, Allowing Agencies, 3-18-2024, "From Patents to
Policy: The Potential Ripple Effects of Revising the Chevron Doctrine", Brooks Kushman,
[Link]
revising-the-chevron-doctrine/ (Accessed on July 6, 2024) CR

The impending decision on the Chevron doctrine not only raises questions about the direction of the United
States Patent and Trademark Office (USPTO), but also signals potential shifts across a spectrum of regulatory
environments intersecting with intellectual property (IP). The USPTO, which relies on Chevron deference for
interpreting complex statutes in patent law, exemplifies the immediate challenges of a post-Chevron landscape. Should this
deference be curtailed, the agency’s decisions and regulations might face heightened scrutiny and
uncertainty, complicating the patent examination process and affecting applicants’ strategies. This
scenario at the USPTO serves as a microcosm for the broader regulatory ecosystem. Similar challenges
could ripple through antitrust enforcement, where the FTC and DOJ navigate IP rights within competitive markets;
biotechnology, where the FDA’s expedited approval processes for new medical innovations could slow; environmental law, with
the EPA’s facilitation of green technologies potentially facing roadblocks; and telecommunications, as the FCC’s management of
spectrum rights and net neutrality principles might encounter increased litigation. Each of these domains relies on a nuanced
interpretation of laws that govern the balance between innovation, public interest, and market
competition. Accordingly, a shift in Chevron deference, therefore, could potentially introduce a layer of
unpredictability and legal complexity, affecting not just the USPTO but also the broader landscape of
regulatory action that is intertwined with intellectual property. This interconnectedness underscores the
need for careful consideration of the potential consequences that such a legal shift might entail for
innovation and regulatory clarity across industries.

Chevron guts the plan – turns innovation and drives out start ups
James Bertino , Benjamin C. Stasa, Ph.D. Candidate, Allowing Agencies, 3-18-2024, "From Patents to
Policy: The Potential Ripple Effects of Revising the Chevron Doctrine", Brooks Kushman,
[Link]
revising-the-chevron-doctrine/

The Law of Unintended Consequences Inevaluating the potential dismantling of the Chevron doctrine, it’s instructive to
consider the principle known as “the law of unintended consequences” and the metaphor of Chesterton’s Fence. The latter,
from the writings of G.K. Chesterton, suggests that one should not remove a fence without first understanding why it was erected in the first
place. This wisdom underscores the importance of considering the original purpose and the potential ramifications of altering long-standing
legal and regulatory structures, such as Chevron deference. The principle of Chesterton’s Fence—urging caution before removing established
structures without understanding their purpose—is illustrated in the passage of the America Invents Act (AIA) of 2011. Enacted
with the intention of streamlining the patent process and reducing litigation, the AIA marked the most significant overhaul of the U.S. patent
system in decades. Among its reforms, the shift from a “first-to-invent” to a “first-inventor-to-file” system was aimed at simplifying the
well-intentioned changes
application process and aligning U.S. patent law with international standards. However, the AIA’s
brought about unintended consequences that underscore the complexity of reforming existing laws—including intellectual
property laws. Some smaller inventors and startups, which the patent system seeks to protect and encourage,
found themselves at a disadvantage to larger counterparts, struggling with the increased pace and cost
of filing patents in what has become more of a “race to the patent office” environment. This real-world
example underscores not just the potential for unintended consequences within patent law, but also serves as a cautionary tale
for broader regulatory environments. As the AIA’s reforms have shown, changes intended to simplify and improve one
area of the law can lead to increased challenges for those it aims to benefit, particularly small entities and startups. This
experience mirrors the concerns surrounding the potential overhaul of the Chevron doctrine. The doctrine, much like a proverbial fence,
was established to address specific needs within the regulatory and judicial landscape, balancing agency expertise and judicial oversight. It has,
over the decades, facilitated a certain predictability and efficiency in how federal statutes are interpreted and enforced, particularly in complex
areas intersecting with intellectual property law. Intellectual
property, by its nature, thrives on a delicate balance
between protecting innovators’ rights and fostering a competitive, dynamic environment conducive to further
innovation. As we await the Supreme Court’s ruling regarding the fate of the Chevron doctrine, it’s important to ponder the “fence” that
Chevron represents—not just as a barrier but as a boundary that delineates roles and responsibilities within the federal regulatory framework.
Removing this boundary without fully appreciating its function could introduce a series of unintended
consequences, particularly for the realm of intellectual property. These consequences might manifest as increased
litigation, higher barriers to entry for startups, and a chilling effect on the very innovation that
intellectual property laws are designed to promote.

Intellectual Property will be majorly affected by Chevron

Morgan Lewis Law “LIFE SCIENCES POST-CHEVRON: NAVIGATING THE RANGE OF LEGAL AND
REGULATORY CHALLENGES RAISED BY LOPER BRIGHT” July 08, 2024
[Link]
and-regulatory-challenges-raised-by-loper-bright

The Court’s decision in Loper Bright will likely have a significant impact on all regulated industries, including
the highly regulated life sciences industry. The decision may provide opportunities to raise new or enhanced
arguments at various stages of proceedings to support or oppose an agency’s interpretation, as well as new
proactive challenges to existing agency rules or standards. This is especially true with respect to disputes pending in the federal
courts, including rulemaking challenges or agency decision appeals. The exact impact of Loper Bright on the life sciences
industry will likely only be truly known with the passage of time. What is clear, however, is that the Loper Bright decision will
affect the application and interpretation of a significant number of the statutes under which the life sciences
industry operates. This will impact a multitude of areas, including regulation by the Food and Drug Administration (FDA), healthcare and
product reimbursement, white collar enforcement and investigations, intellectual property, Federal Trade Commission and antitrust
enforcement, international trade and national security regulation, public company disclosures, environmental regulation, government
contracting, business transactions, and litigation, which we discuss below.

USPTO interpretations will be challenged post Chevron

Morgan Lewis Law “LIFE SCIENCES POST-CHEVRON: NAVIGATING THE RANGE OF LEGAL AND
REGULATORY CHALLENGES RAISED BY LOPER BRIGHT” July 08, 2024
[Link]
and-regulatory-challenges-raised-by-loper-bright
Intellectual Property US Patent and Trademark Office (USPTO) The USPTO is the agency that issues all patents in the United States and
administers post-grant review proceedings; therefore, it is an important agency for any life sciences company looking to protect its intellectual
property. Under a prior ruling in the Federal Circuit, it was established that the USPTO’s interpretations of substantive patent law were not
subject to deference because the agency was never granted substantive rulemaking authority by Congress. Instead, USPTO interpretations of
substantive patent law have been reviewed de novo on appeal. Therefore, Loper Bright will not impact how substantive patent law is
interpreted at the USPTO. Nor will the decision affect cases where the Federal Circuit holds that there is no statutory ambiguity, which has
frequently been the case. However, Loper
Bright will likely impact how the Federal Circuit treats the USPTO’s
interpretations of its own ambiguous procedural statutes, as the USPTO previously enjoyed deference in
those instances. There may, accordingly, be an increase in challenges at the Federal Circuit with respect to
how the USPTO implements its procedural requirements, including while administering inter partes review.
 USPTO Fails – Staffing
Understaffed – can’t review applications correctly
Max Baucus (He served as Chairman of the U.S. Senate Committee on Finance from 2001 until 2003,
and again from 2007 until 2014) “It’s Time for the U.S. to Tackle Patent Trolls” September 16, 2022
[Link]

Over the long term, the

USPTO needs to be resourced to handle the high volume of patent applications it
receives and focus on patent quality, only granting patents when an idea is novel, useful, and non-obvious. On average,
examiners now only spend 19 hours to reviewing each application. We must also improve transparency in the patent
system so that the public knows who the true owners of patents are and patent trolls are prevented from misrepresenting their identities. But
the director of the USPTO, Kathi Vidal, also has an opportunity to take immediate action that will substantially improve how our patent system
functions and advance U.S. innovation.
 USPTO Fails – Reforms Needed
In order to effectively tackle the issues of IP reforms, supporting the employees at the
USPTO must be the first place we start
Russell Slifer, 7-4-2024, "How to Really Improve the U.S. Patent System: Support USPTO Employees",
IPWatchdog | Patents & Intellectual Property Law, [Link]
us-patent-system-support-uspto-employees/id=178594/ (Accessed July 6, 2024) CR
Our patent system has been relentlessly attacked for the better part of the last 20 years. Patents have been blamed for everything from the
creation of patent litigation abuse to high prescription drug costs. There is scant evidence of an actual causal relationship, yet the attacks continue.
Knowing that it would be impossible to outright ban patents, the popular argument is that poor quality patents that should not have issued are
responsible for a majority of litigation issues and drug prices. In response, Congress created the Patent Trial and Appeal Board (PTAB) at the
United States Patent and Trademark Office (USPTO) in 2011 to make it easier to invalidate “low quality” patents without the need for federal
district court litigation. Yet, after more than 10 years of invalidating issued patents through the PTAB, the criticism
of our patent system has not abated. These patent critics have called for new policies to change the
behavior of inventors. The USPTO recently announced substantial fee increases and new “rules” that many
argue actually amount to legislation to force behavior changes and decrease the number of patent
applications that have historically been available to inventors. If implemented, these changes will significantly
increase the cost and complexity of obtaining patents, but they will not address the perceived
deficiencies in the patent system. Improving the operations of the USPTO, however, is the best
opportunity to improve the patent system. An Alarming Trend Recent workplace rankings by USPTO employees in the Best
Places to Work in the Federal Government, a little-known survey outside of the government, should be a red flag for supporters of our patent
system. Twenty years ago, the USPTO’s overall survey result was very poor but improved dramatically until the USPTO reached the top place for
employee satisfaction in 2013. The improvement was the result of focused efforts by leadership to improve the agency. In the last 10 years, the
USPTO’s overall survey score has steadily decreased. While the current state is not back to the lows of decades ago (the USPTO ranked 236 out
of 459 subcomponent agencies), the downward trend is alarming. I had the pleasure of being a leader of the USPTO and working with exceptional
patent and trademark examiners. Examiners have scientific degrees; many are attorneys, and they perform a detailed study of technical
documents every day. It should not be a surprise that their workplace satisfaction is reflected in the USPTO work product. Quality starts
with employees. This is true for manufacturing cars and examining patents. A belief in the agency mission, having meaningful input and
enough time to perform a quality job are important. The USPTO reports to the Commerce Department and Secretary of Commerce Raimondo
has received well deserved accolades for her leadership of Commerce policies. Among her top achievements are working to get affordable,
reliable high-speed Internet service to everyone in America, revitalizing the U.S. semiconductor industry, and building a climate-ready nation. In
addition to these important achievements, the Commerce Department has been a top ranked place to work among large federal places to work.
But, for some reason, those leadership achievements haven’t extended to the USPTO. Looking Ahead The next administration faces a difficult
situation. The drop in the USPTO ranking continues under President Biden and reversing that in a second term will require changes in both policy
and leadership. Neither is easy to achieve in a second term. Likewise, a second Trump administration would return to the Republican platform of
shrinking government and a hostility toward government labor unions. This is not a recipe for improving federal employee engagement.
Improving America’s patent system starts with supporting the front-line employees of the USPTO. Given
the right support, tools, and leadership, the agency can attract the best talent to carefully examine and
issue the world’s best patents and trademarks.
USPTO Good
 USPTO Good - PTAB Board/NHK-Fentiv
NHK-Fintiv is a general policy but not a substantive rule. Guidance by the new director
of the USPTO limited it’s impact. There are plenty of ways around it
Baker Holstetler “The End of the Fight Against Fintiv” May 24, 2024
[Link]
In January of this year, the Supreme Court denied a request for certiorari on the Federal Circuit’s decision regarding its first two challenges.
And, on April 1, the Northern District of California again dismissed the remanded claims against the director, now Kathi Vidal. Judge Edward
Davila stated that Fintiv was excluded from the APA’s notice-and-comment rulemaking requirements because Fintiv was a general
statement of policy and not a substantive rule. Apple Inc. v. Vidal, No. 20-CV-06128-EJD, 2024 WL 1382465, at *13 (N.D. Cal.
Mar. 31, 2024). A substantive rule requires notice-and-comment rulemaking under the APA. Davila found that a substantive rule
affects individual rights and obligations and does not leave the PTAB free to exercise discretion and consider the individual facts
before it in a given case, and that a general statement of policy must be only prospective and must not
establish a binding norm or be finally determinative of the issues or rights. Davila ruled that because IPR
institution is never required (referencing § 314(a)), the Fintiv factors do not affect individual rights or obligations, and because
the Fintiv factors are referred to as “nonexclusive,” they are not determinative and leave the PTAB free to exercise discretion. On April 19, the
PTAB finally followed up on the ANPR and issued a notice of proposed rulemaking (NPR). Notably absent from the NPR was any mention of the
Fintiv factors. It appears that, considering Davila’s order in the Northern District of California, Vidal and the PTAB are content leaving the Fintiv
factors in their current state. Moreover, the
denial of institution under Fintiv has declined following the guidance
issued by Vidal, and petitioners can now utilize Sotera stipulations to avoid denial. See Sotera Wireless, Inc. v.
Masimo Corp., IPR2020-01019, Paper 12 (PTAB Dec. 1, 2020). As a result, the criticism that Fintiv discretionary denials
frustrate the purpose of IPRs to provide a more efficient venue for patent issues no longer packs the same punch.
The Patent Trial Advisory Board (PTAB) is currently working to handle patent
litigations.
Ann Phelan. "Patent challenges can help lower drug prices and create new generic options". R Street
Institute, September 21, 2022 Wednesday.
[Link]/api/document?collection=news&id=urn:contentItem:66FF-JVJ1-DYY9-00R9-00000-
00&context=1519360. (Accessed July 8, 2024.) CR
Patents have long been a part of the conversation over skyrocketing drug prices and America's increasingly unaffordable healthcare system.
Experts often blame patent "thickets"-dozens or hundreds of patents for one drug-for high drug prices
and anticompetitive behavior. But a key reform enacted more than a decade ago, the America Invents Act,
established the PTAB as a pathway to administratively challenge the correctness of issued patents
before panels of expert administrative patent judges who sit on the PTAB within the U.S. Patent and Trademark Office
(USPTO). The intent was to create an "efficient litigation alternative for addressing ongoing questions of patent quality," Duan notes. R Street's
report findings
suggest a potential relationship between administrative PTAB patent challenges and the
speedy entry of generic, low-cost drugs to the market. Using publicly available patent, drug approval and pricing data from
the U.S. Patent and Trademark Office, the Food and Drug Administration and the Centers for Medicare and Medicaid Services (CMS), the report
demonstrates several key findings: "Whena successful drug patent challenge is brought before the PTAB, an
average of seven additional products are approved within five years and the price drops by around 20
percent. Within three years of a successful challenge, 16 percent of drug formulations drop by 75
percent or more. Additionally, large price increases-of 25 percent or more-are fairly rare," Duan explains. Importantly, this study also
finds that PTAB drug patent challenges are not the only cause of these outcomes. These proceedings likely act as part of broader litigation
strategies intended to enable generic entry. This
suggests that PTAB drug patent challenges play an important role in
the healthcare ecosystem. Duan concludes that, moving forward, any legislation that might limit the
usability or availability of PTAB challenges must account for this vital role.
 USPTO Good – Funding
USPTO is the model government agency – they have so much money Congress
borrows from them in times of trouble
Annelise Gilbert “Patent Office Has Funds to Stay Open Three Months Amid Shutdown” September 27,
2023 [Link]
amid-shutdown

Trademark and patent reserve funds may last different lengths Stakeholders used to office’s ability to
weather a shutdown The US Patent and Trademark Office can continue operating for about three
months if the government shuts down because Congress fails to enact funding legislation by Saturday
night’s deadline. The agency would draw from its $1.04 billion operating reserves, which should cover
about three months of patent operating expenses and slightly more than four months of trademark
operating expenses, according to a submission it made to Congress in March. That would allow for full
staff and operations to continue—at least temporarily—including at the administrative tribunals that
hear challenges to patent validity and resolve trademark disputes. The PTO is self-funded mostly
through patent and trademark filing fees, but it is still subject to the annual appropriations process.
Congress allocates those collected fees to the office through the annual Commerce-Justice-Science
spending bill. For fiscal 2023, the office received appropriations equaling its full fee collection estimate
of $4.1 billion, which fully offset its spending and funded its reserve balance. The PTO stayed open
during the most recent government shutdown, which lasted 35 days from December 2018 to January
2019. But some patent attorneys began to worry about the office’s ability to function as the
appropriations lapse wore on. “At the very end of it we started to think, ‘Well if this goes on for much
longer, maybe they will have to stop,’ said Jonathan Stroud, the general counsel of Unified Patents. “But
it would have been a historic shutdown.” The expected stability through a short-term shutdown
represents a change from the PTO’s past. Because the PTO’s fee revenue and other income have often
exceeded its total estimated spending needs, Congress in past decades diverted part of the revenue to
fund other government spending. Former PTO Acting Director Joseph Matal said there is “currently
nothing in the law that would prevent appropriators from again diverting fees.” “While the America
Invents Act originally included a provision that would take the USPTO out of the appropriations process
and prevent fee diversion, that provision was stripped out of the bill,” he said. During the passage of the
AIA in 2011, however, he said, appropriators “made a commitment that they would not divert USPTO
fees going forward, and they have stuck to that ever since.” “If that were to go away, then a shutdown
would matter more because then the money is kind of technically going directly into the general”
government funding, Stroud said. A PTO spokesperson didn’t respond to Bloomberg Law’s request for
comment. Practitioners Unconcerned Matal, now a partner at Haynes & Boone LLP, said none of his
clients have asked how a shutdown might affect any work involving the patent office because
“everyone’s used to the USPTO being able to weather any kind of shutdown.” The reserve fund and
other PTO practices “have now been in place for over a decade, and it looks like the agency has found its
way out of these past messes,” Matal added.
 USPTO Good – Chevron Deference
Chevron won’t affect the USPTO – no impact
Dion Bregman et al “CHEVRON OVERRULED: IMPACT ON IP LAW IN THE WAKE OF US SUPREME
COURT’S DECISION” July 04, 2024 [Link]
impact-on-ip-law-in-the-wake-of-us-supreme-courts-
decision#:~:text=The%20Chevron%20doctrine%20required%20courts,court%20read%20the%20statute
%20differently

IMPLICATIONS FOR IP LAW IN THE UNITED STATES The reversal of Chevron deference will impact US IP law, and it is likely to have
the most impact at the ITC. While the reversal will also affect how courts review interpretations of statutes made by IP administrative bodies
like the US Patent and Trademark Office (USPTO) and the US Copyright Office, we expect a lesser impact for those agencies. THE ITC The ITC
hears IP cases pursuant to 19 USC § 1337, which authorizes the ITC to investigate alleged wrongdoing that involves importing an article into the
United States that violates patent, trademark, copyright, trade secret, and other unfair competition laws. Drawing on this authority, the ITC has
become a popular forum for IP cases given the speed of the cases[1] and the remedies that are difficult to receive in district court: injunctive
relief and cease-and-desist orders. The ITC’s authority has not gone unchallenged. For example, in Suprema v. ITC,[2] the US Court of Appeals
for the Federal Circuit considered whether the ITC could ban the importation of articles that do not infringe as imported but would later
infringe post-importation. The Federal Circuit concluded that the statutory language was ambiguous, and relying on Chevron, determined that
the ITC’s broader interpretation of Section 337 to allow for jurisdiction of post-importation infringement was reasonable.[3] On June 24, in
anticipation of the Supreme Court’s Loper Bright and Relentless decision, Google petitioned the Federal Circuit for an en banc rehearing,[4]
asking the Federal Circuit to reconsider “[w]hether the International Trade Commission’s authority under 19 USC § 1337(a)(1)(B)(i) is limited to
articles that infringe a patent as imported, or instead extends to cases where infringement can occur only when additional features are added
or additional steps are performed after importation.”[5] The Federal Circuit will have to consider this question and any future challenges to the
ITC’s interpretation of its authority. This could lead to further limitations on what cases can be brought before and succeed at the ITC. THE
USPTO Unlike with the ITC, neither patent law in general nor practice before the USPTO is likely to be
affected significantly by Chevron being overruled. As the Federal Circuit has held, the USPTO was never granted
substantive rulemaking authority by Congress and, as a consequence, the agency’s interpretations of the
substantive patent law have never received deference[6] and are reviewed de novo on appeal.[7] In contrast,
overruling Chevron may impact how the Federal Circuit treats the USPTO’s interpretations of procedural statutes. Previously, the USPTO has
enjoyed deference to its interpretations where the Federal Circuit has found ambiguity in the procedural statute,[8] although the Federal
Circuit frequently holds there is no statutory ambiguity.[9] The overruling
of Chevron deference is not expected to
impact the USPTO’s creation of procedural rules that Congress has authorized the USPTO to promulgate in areas where
statutes are silent. We may, however, see an increase in challenges at the Federal Circuit on how the USPTO
implements its procedural requirements, but we anticipate those challenges to be specific and narrow.

The burden is on the negative to prove how the Chevron ruling would impact this
specific affirmative – changes have to be based in special justification
Chaikovsky et al. (Yar R. Chaikovsky, Mark Davies, Ethan Plail, Edred Richardson) “Chevron is Done —
What Does Loper mean for the PTAB and ITC?” July 01, 2024 [Link]
alert/chevron-done-what-does-loper-mean-ptab-and-itc
The Supreme Court overturned 40-years of Chevron deference. Courts will now exercise independent judgment over agency statutory
interpretation. Courts
can still defer to an agency's statutory interpretation under Skidmore deference based on
"the thoroughness evident in [the agency's] consideration." The decision expressly carves out "prior
cases that relied on the Chevron framework. The holdings of those cases that specific agency actions
are lawful… are still subject to statutory stare decisis." A challenger must provide a "special
justification" to overrule Chevron-era cases.
Chevron never applied to issues of economic and political significance. The aff will get
resolved the same way as it would before. Also, most statutes would never be
considered vague in the first place making the Chevron doctrine irrelevant
Chaikovsky et al. (Yar R. Chaikovsky, Mark Davies, Ethan Plail, Edred Richardson) “Chevron is Done —
What Does Loper mean for the PTAB and ITC?” July 01, 2024 [Link]
alert/chevron-done-what-does-loper-mean-ptab-and-itc
Under Loper, judges "must exercise independent judgment in determining the meaning of statutory provisions." Loper, 603 US __ at *16. Loper
states that "courts [should] use every tool at their disposal to determine the best reading of the statute and resolve the [statutory] ambiguity."
Id. at *23. However, inmany ways the framework courts use to analyze statutes will not change. As explained
above, under Chevron, "step zero" requires the court to decide whether a statute is ambiguous. If the statute is not ambiguous,
then the court should apply the plain meaning of the statute. Arguably when a statute is "clear and unambiguous" a
court using "every tool at their disposal to determine the best reading of the statute" should reach the same result under
Loper as it did under Chevron, because even under Chevron, agency interpretations of an unambiguous
statute get no deference. As one example, in Facebook, Inc. v. Windy City Innovations, LLC, the Federal Circuit considered the PTAB's
interpretation of 35 USC. § 315(c). 973 F.3d 1321, 1338 (Fed. Cir. 2020). In Facebook, Petitioner Facebook filed a petition for IPR for each of four
asserted patents. Id. at 1328. After Facebook's IPRs were on file, Patent Owner Windy City asserted additional claims in a parallel district court
case. Id. Some of these new claims "were claims that Facebook had not challenged in its petitions for IPR." Id. Subsequently Facebook prepared
two additional petitions for IPR challenging these additional asserted claims. Id. However, "[b]ecause the petitions would otherwise have been
time-barred under 35 USC. § 315(b)," Facebook filed the new petitions along with motions asking the Board to join each new proceeding to the
already-instituted IPR on the same patent under § 315(c). Id. The question therefore arose whether 315(c) allowed "same-party joinder"—i.e.,
whether Facebook could join an earlier Petition filed by Facebook under 315(c). Id. The Board instituted Facebook's new petitions and granted
Facebook's motions for joinder. Id. In particular, the Board found that Facebook "ha[d] established good cause for joining this proceeding with
the [existing] IPR." Id. In a concurring opinion, two Administrative Patent Judges ("APJs") stated that "§ 315(c), when properly interpreted, does
not authorize same-party joinder" but that "the Director repeatedly has taken the position ... that such same-party joinder is permitted by §
315(c)" and the concurring APJs agreed to follow that position in this case, "[d]espite [their] disagreement with the Director's interpretation."
Id. The Board's Precedential Opinion Panel also analyzed this issue in Proppant Express Investments, LLC v. Oren Technologies, LLC, No.
IPR2018-00914, Paper 38, 2019 WL 1283948 (P.T.A.B. Mar. 13, 2019), and concluded that "315(c) permits a petitioner to be joined to a
proceeding in which it is already a party." Id. at 1335. In Facebook, the USPTO director also argued that Chevron deference should apply to at
least POP decisions. However, on appeal the Federal Circuit explained that "§ 315(c) does not authorize same-party joinder, and also does not
authorize joinder of new issues." Id. at 1338. To reach this conclusion the Federal Circuit relied on "traditional tools of statutory interpretation."
Id. In particular, the Court explained that "the clear and unambiguous language of § 315(c) does not authorize same-party joinder" and,
therefore, "we need not defer to the PTO's interpretation of § 315(c)." Id. The
Facebook decision, therefore, represents one
way a Court's analysis of statutes will not change in light of the Loper decision. Where a statute was found to be
"clear and unambiguous" Chevron did not afford any deference to the agency interpretation. This will arguably stay the same under Loper.
Likewise, as noted in the Loper decision, "Chevron does not apply if the question at issue is one of 'deep
economic and political significance.'" Loper, 603 US __ at *27. Therefore, the Loper decision should have less of an
impact on these questions of "deep economic and political significance."

Chevron won’t affect copyright – no impact

Dion Bregman et al “CHEVRON OVERRULED: IMPACT ON IP LAW IN THE WAKE OF US SUPREME
COURT’S DECISION” July 04, 2024 [Link]
impact-on-ip-law-in-the-wake-of-us-supreme-courts-
decision#:~:text=The%20Chevron%20doctrine%20required%20courts,court%20read%20the%20statute
%20differently

THE US COPYRIGHT OFFICE We also do not anticipate that the overruling of Chevron will have a
significant impact on copyright law and the Copyright Office because judicial review of Copyright
regulations has not regularly applied Chevron deference. Congress has expressly delegated authority to
the Copyright Office to develop regulations regarding many facets of copyright law. This includes the music compulsory licensing rates
set by the US Copyright Royalty Board, the formation and implementation of the Copyright Office’s Copyright Claims Board, and the registration
of different types of copyrighted works. Every three years, the Copyright Office issues exemptions for Section 1201 of the Digital Millennium
Copyright Act (DMCA), specifically to the prohibition on circumvention of technological measures that control access to copyrighted works.
These exemptions cover issues including right to repair, unlocking cellphones, “jailbreaking,” and ripping DVDs for archival or educational
purpose. These regulations, to the extent that they do not interpret statutes, are unlikely to be affected. Though the Copyright
Office falls within the Library of Congress, which is part of the legislative branch and thus not an agency within the meaning of the
Administrative Procedure Act (APA) judicial review provision, the Copyright Act itself states that the actions of the
Register of Copyrights are subject to APA review. In June 2024, the US Court of Appeals for the DC Circuit confirmed that
“[i]rrespective of whether the Library is an ‘agency,’ . . . Congress has specified that copyright regulations . . . are subject to the APA.”[10]
Further, the DC Circuit held that the Triennial DMCA rulemaking regarding the Section 1201 exemptions are subject to APA review.[11]
Similarly, the actions of the Copyright Royalty Board are reviewed under the standards of the APA. Notably, these actions are typically reviewed
under the APA’s “arbitrary and capricious” standard.[12] Courts have applied Chevron deference to Copyright Office regulations
where they interpret ambiguous statutes via formal rulemaking,[13] a relatively rare occurrence. Many Copyright Office
decisions, however, do not involve formal rulemaking, and have not received Chevron deference.[14] For
example, a court refused to apply Chevron to the Copyright Office Compendium’s construction of the meaning of “preexisting work” where no
formal rulemaking occurred.[15] Another court determined that the Copyright Office’s “[i]ndividual decisions about the copyrightability of
works are not like ‘rules carrying the force of law,’ which command Chevron deference.”[16] In sum, the Court’s decision is
anticipated to impact few regulations or decisions set by the Copyright Office.
IPR Bad – General
 IPR Bad – Market Disruptions
Assuming positive consequences with IP reform is a dangerous thought experiment –
the only thing we know for certain is that disruption to the current marketplace scares
innovators and investors away from the IP field.
Benslimane, Ismaël, et al. "Intellectual property reform in the laboratory." Journal of Economic
Behavior & Organization 206 (2023): 204-221. [Link] (Accessed
July 5, 2024) CR

Institutional change is difficult – even when the change is known to be beneficial. Changing the institutions that
govern the functioning of society is likely to generate short-term disruption, increase transaction costs,
and cause errors and inefficiencies. Moreover, there might be losers – people who do not benefit from the
change, either at all or in the short run. These losers could reduce their contributions to society because
of their grievances against the winners and their feeling of relative deprivation to thus limit or erase the
benefits of the institutional change (Dannenberg and Gallier, 2019). Reforms of intellectual property (IP) rights,
particularly patents, are a case in point. Despite a broad debate, the net effect of intellectual property
on innovation and welfare is unclear. It is thus even more unclear whether a reform would be beneficial. Already back in
1955, the U.S. Senate Judiciary Committee commissioned several reports from experts such as Vannevar Bush
and Fritz Machlup on the effects of the patent system and the need to reform it. After surveying 200 years of
economic theory on the patent system, Machlup (1958) concluded the following: No economist, on the basis of present knowledge,
could possibly state with certainty that the patent system, as it now operates, confers a net benefit or a net
loss upon society. [... ] If one does not know whether a system ‘as a whole’ [... ] is good or bad, the safest “policy conclusion” is to
“muddle through” – either with it, if one has long lived with it, or without it, if one has lived without it. If we did not have a patent system, it
would be irresponsible, on the basis of our present knowledge of its economic consequences, to recommend instituting one. But since we have
had a patent system for a long time, it would be irresponsible, on the basis of our present knowledge, to recommend abolishing it.
According to Machlup, in the 1950s, we did not know enough about the advantages and disadvantages of the patent system to take
risks involved in its demise. Despite decades of research, Machlup’s conclusion still stands – we do not know enough about the
effects of the patent system to be able to suggest a clear reform path. In the meantime, the stakes involved in
taking action have steadily increased. In Machlup’s time, less than 150,000 patents were filed worldwide in a given year. This
number increased 20-fold to over 3 million in 2018. Given the current size and impact of the IP system, are IP abolitionists such as
Boldrin and Levine (2008a) or IP reformists such as Bessen and Meurer (2008) and Stiglitz (2008) playing with fire by
suggesting that we should abolish or strongly reform IP? IP is now long established and has attained
global reach. The disruption risk is therefore greater. Economic agents accustomed to the IP system
could be destabilized, demotivated and, in the worst case, not compensated by the path opened by IP
reforms.
 IPR Bad – Innovation
Stronger IP laws lead to a decrease in innovation
Brüggemann, Julia, et al. "Intellectual property rights hinder sequential innovation. Experimental
evidence." Research Policy 45.10 (2016): 2054-2068. [Link]
(Accessed July 6, 2024) CR
This paper contributes to the debate on the role of intellectual property rights by means of a laboratory experiment. We recreate in the laboratory a sequential
innovation environment, and use a word-creation task that combines the central features of innovation, investment and creativity, in one experiment. We use this
task to investigate the effects of the presence or absence of intellectual property rights on innovation activity and welfare. We further assess the effect of
communication with and without IP. Results clearly show that the introduction of intellectual property hinders
innovation. In presence of IP the economy produces less valuable innovations, and welfare decreases.
Introducing IP causes a shift towards more basic innovations and a higher degree of autarky – i.e., relying on the self-produced
prior innovations rather than building on the best available opportunity within the economy at large. Conversely, the absence of IP results in more

sophisticated and more valuable innovations and provides incentives to stand on the shoulders of giants,
opening up more profitable innovation paths. Moreover, the negative effects of IP are not a short term
phenomenon, but rather worsen over time as license fees tend to increase, leading to the breakdown of
cooperative efforts and the use of autarkic strategies.
Government Intervention Bad
 Intervention Fails – Trades off with markets

Government intervention fails and makes the harms of the affirmative worse
“Should US Congress Reform Copyright Law for the Digital Age?” Managing Intellectual Property,
no. 239, Mar. 2014, p. 73. EBSCOhost,
[Link]/[Link]?direct=true&AuthType=sso&db=bth&AN=95821846&site=ehost-
live&scope=site (Accessed July 8, 2024) CR

But lawmakers
seemed hesitant to implement drastic legislation, with many suggesting they would prefer
companies came to agreements among themselves. "I think it's important that we recognise, as with doctors, first do no
harm," said Representative Zoe Lofgren. Representative Adam Smith seemed sympathetic to the issues faced by the internet companies. In
their testimony, Oyama and Sieminski and others presented evidence of a growing issue of abusive takedown notices being used to censor
critical commentary or interfere with "legitimate competition." Smith
said there should be statutory damages for the
abusive use of takedown notices, as there is for copyright infringement. "I hope you can all figure out a
way to solve this problem without getting the government involved," said Representative Poe.
Somewhat ironically for a Congressman, he added: "Because government makes it worse, not better."

Government intervention trades off with more effective free market solutions – plan
hinders innovation and creative problem solving
Seevers, B. (2023, June 15). The Unseen Costs of Intellectual Property - Econlib. Econlib.
[Link] (Accessed July 8, 2024) CR

Is all lost? Are we to give up innovation? No; there

is plenty of literature explaining how innovation occurs in the absence
of IP protections (Against Intellectual Property and Against Intellectual Monopoly). Non-profits can innovate, too. If a group of people
observe that the private sector is innovating inefficiently according to their preferences, they can form or fund a non-profit corporation that engages in research
regardless of IP protections. Furthermore, for-profit
companies can take a lot of measures to make sure that their
formulas are not copies, such as built-in obsolescence, un-replicability, and non-disclosure agreements.
These are only some ways that companies can protect their formulas. Who is to say that a company will not hire a team of
scientists to innovate more in order to stay ahead of competitors? Are we to suspect that pharmaceutical companies will simply give up? Definitely not; they will
just adopt a different business model. There is no way to determine a priori how a company will alter innovation in the absence of IP. Some will not be affected,
some will decrease innovation, and some will innovate more. The choice of potential innovators is not always between innovating or not innovating, it is between
innovating here, innovating there, or going into some non-innovative yet productive endeavor. To say that there is an underproduction of innovation at any point is
to suggest that there is a better quantity of innovation that exceeds the quantity of innovation desired voluntarily by consumers. If consumers are willing and able
to support a higher degree of innovation, someone will find a way to exploit that desire, thus, profiting. The claim states that there is an efficient level of innovation
outside of what human actors have voluntarily demonstrated. Efficiency, determined by voluntary actions of human actors, is opposed to the IP. Ultimately,

many, many people are harmed in order to provide protection for someone else’s idea in excess of the
free market quantity of protection. Such a thing harms consumers generally instead of enhancing their
welfare. That alone is enough to be against IP. Prioritizing one innovation over another is nothing short
of arrogance. It neglects the unseen effects of government intervention and subverts the ability of the
market to fulfill consumer desires. All action aims at the satisfaction of human affairs. Choosing not to
innovate is a beneficial decision just like any other, and we should not make it a matter of public policy.
 Trade Secrets Good

Trade Secrets are key to protecting IPR – EV Market proves

Proskauer Rose LLP. "The Critical Role of Trade Secrets in the Booming EV Industry". Newstex Blogs
National Law Review, June 17, 2024 Monday.
[Link]/api/document?collection=news&id=urn:contentItem:6C8P-74K1-JCMN-Y0S1-00000-
00&context=1519360. (Accessed July 8, 2024.) CR

Trade secrets provide a valuable opportunity to protect important intellectual property, while also maintaining
their confidentiality. Car battery technology, proprietary software for vehicle management systems, and EV production
techniques may all incorporate trade secrets that a company would like to protect. By protecting these
important, commercially valuable assets, companies can maintain their competitive edge in this growing
industry. As the EV market continues to explode, this trend of trade secret litigation is likely to continue.
Competitors in the EV industry are seeking trade secret protection for their commercially valuable, and confidential, business information.
Companies already in this space, or those trying to break into the EV market, should be aware of the likelihood of trade secret litigation.
Additionally, companies should protect their own trade secrets by identifying them, implementing policies
across the company to protect them, and ensuring compliance with those policies. This type of intellectual property protection
can be done in conjunction with other intellectual property protections, such as obtaining patents on related technology. Enforcing
intellectual property rights by protecting trade secrets is a strategic tool to protecting highly valuable
business information and practices in the fast-paced EV industry.
 Intervention Fails – Causes global devaluation
Current industry standards are working – massive changes will devalue American IP
and stifle innovation
Cullen et al, 23 Cullen, F., Iancu, A., Kappos, D., Michel, P., & O’Malley, K. (2023). A government
agenda for intellectual property. Council for Innovation Promotion. [Link]
content/uploads/2023/07/Reaffirm-and-Refine-A-Government-Agenda-for-Intellectual-Property-July-
[Link] (Accessed July 6, 2024)

Standardization plays a fundamental role in developing and implementing the foundational technologies at the core of critical
global infrastructure, such as 5G and Wi-Fi. The standard setting process generally includes a commitment from innovators
whose new technology is included in the standard to license any applicable patents on fair, reasonable, and
nondiscriminatory (FRAND) terms.42 This process enables those innovators to collect royalties to invest in
further research and development. It also rewards the innovators for the risk they take in creating new
technologies without knowing whether it will be included in the standard. SEP licensing involves complex incentives,
highly sophisticated markets, and worldwide portfolio considerations. Critics of the system suggest that it is not working, pointing to the few
licensing disputes that end up in court. But the
fact that there is some litigation does not mean the system is broken.
And in any case, data shows that SEP-related litigation has decreased when normalized to account for the growth
of industries implementing SEPs.43 Purported solutions to this non-existent problem, such as the European Union’s
recent release of a draft proposal to create a court to set a non-binding royalty rate44 or a similar proposal being informally circulated in the
United States to have a single SEPs rate court, will most likely lead to the devaluation of innovator companies’
intellectual property. It will also signal to countries whose domestic industry is dominated by implementors
of technology (rather than innovators of it) to create their own system that is explicitly designed to
depress royalty rates. This is already occurring in a less systematic form in countries like China, and would predictably be accelerated if
the United States signals that significant regulatory intervention in this space is needed.45 In other words, attempting to regulate
these markets at home will almost surely guarantee that American IP is devalued abroad. Congress
should avoid heavy handed legislation targeting standard essential patents and their licensing
environment. The industry is working well on its own, and efforts to undercut it will stifle innovation.
 Intervention Fails – Implementation takes decades
Legislative reforms take forever – statutory changes take decades
Dan L. Burk, 9-16-2011, "Patent Reform in the United States: Lessons Learned", Cato Institute,
[Link]
(Accessed July 5, 2024) CR

Legislative patent reform can be a costly proposition. Aside from the problem of special interest rent-seeking,
the switching costs of adapting common practice to new legislation can be extraordinarily high. The
America Invents Act offers a prime example of such switching costs. Although businesses will likely experience
somewhat lowered costs in managing international patent filings, the legislation disrupts long settled law, creates new opportunities for
gamesmanship, foments new litigation, and introduces new uncertainty into business decisionmaking. Perhaps ironically, this
means that
the true business of patent reform is left to the U.S. Patent Office and the courts, where it may have been
better to have placed it in the first instance. The many ambiguities and inconsistencies will ultimately be
given meaning by judicial interpretation. It will unquestionably take decades of litigation before we know
what many of these statutory changes introduced into patent law mean for innovation. The political claim that
the AIA will create 200,000 new jobs may well prove to be true, but they will be jobs for patent lawyers.
Mechanism Specific Cards
Trademark
 Increasing Trademarks Bad
Increasing protections of trademarks lowers product quality
Davidson Heath and Christopher Mace, 11-13-2019, "The Strategic Effects of Trademark Protection",
Cato Institute, [Link]
protection, accessed 7-9-2024 | maubu
As the U.S. economy shifts toward service- and technology-based industries, firm value is increasingly accounted for by intangible capital such as intellectual
property. We
examine a basic class of intellectual-property assets—trademarks—and present evidence on
the effects of trademark protection on firm profits and strategy. Trademarks grant the holder a
monopoly over a particular brand. The efficiency rationale for trademark protection is that it incentivizes firms to invest in product quality and
development. On the other hand, stronger trademark protection inevitably insulates incumbents from competition. Whether the quality-incentive or monopoly-
rent effect dominates is an empirical question with significant policy implications. To study the causal effects of varying trademark protection, we exploit the
Federal Trademark Dilution Act (FTDA) of 1995, which granted additional legal protection to “famous” trademarks until its key provision was nullified in 2003 by a
U.S. Supreme Court decision. We find that the act raised treated firms’ operating return on assets by an average of 1.7 percentage points, equal to 12 percent of
their average pre-FTDA profits. The passage of the act was followed by a sharp increase in trademark lawsuits under the new provision and by reduced entry and
turnover in affected goods and service classes, consistent with our hypothesis that the FTDA raised the expected cost of entry into affected product markets. We
next examine the FTDA’s effects on product quality and innovation and product-market strategy. In theory, trademark protection incentivizes firms to produce high-
quality products and prevents a race to the bottom. Alternatively, trademark protection insulates incumbents from competition, in which case stronger protection
may lead to more exploitative behavior. We
find that stronger trademark protection decreased product quality, as
firms that were granted additional trademark protection had increased frequency and dollar value of
recalls of unsafe products and were less likely to launch a recall voluntarily. This theory also predicts that trademark
protection affects innovation. First, some inventions cannot be patented or are better protected via secrecy instead of disclosure. Second, patents expire whereas
trademarks do not: pharmaceutical firms often continue to sell the branded drug at a premium after their patent expires. Third, trademark protection is a
determinant of market power, which is a primary incentive for innovation. We
find that treated firms reduced research and
development (R&D) spending, patenting activity, and new product introductions—suggesting that
stronger trademark protection led to lower competition and less innovation. We also find that treated firms altered
their product-market strategy by introducing brand-extending products in new product categories. At the same time, these firms created fewer new products in
their legacy-product categories. Taken together, our results suggest that firms
responded to stronger trademark protection by
pursuing a more exploitative and less innovative product-market strategy, at the same time extending their brands into
all-new product markets. The main challenge for our research design is that the FTDA neglected to define the term “famous,” which has been previously decided in
court on a case-by-case basis. Thus, there is no objective rule whether any given trademark qualifies as famous. There are two aspects of our research design that
help mitigate this problem. First, the key question for the FTDA’s effects on firm behavior is whether the firm and its competitors believed a trademark would
qualify. Guided by the legal literature, we explore three independent approaches to assigning treatment status as of 1995 and find similar results for all three.
Second, in our research design, mistakes in assigning treatment status attenuate the estimates of the law’s impact toward zero. With this caveat, our results can be
seen as a lower bound on the law’s true effects. Our analysis lets us identify the effects of the treatment on the treated—that is, the effects of granting additional
antidilution protection to incumbent firms. Thus, our results do not speak directly to the effects of protection against infringement, which is the fundamental right
associated with a trademark. However, our results are informative about changes to trademark policy at the margin in an environment (the United States) of strong
intellectual-property enforcement. Interestingly, our results on product quality are consistent with those of economist Yi Qian in a very different setting: Qian finds
that name-brand Chinese shoe companies responded to weaker protection against counterfeits by producing higher-quality products. Our findings that the FTDA
was followed by lower product quality and innovation add to recent studies on the potential downside of intellectual-property protection and suggest that
strengthening trademark protection may not deliver what is promised on the label.
Increasing the protection of trademarks, over burdens an already near collapsed
agency from fraudulent filings and protects their registration.
Harvard Law Review, 03-xx-2021, "Fanciful Failures: Keeping Nonsense Marks off the Trademark
Register", Harvard Law Review, [Link]
nonsense-marks-off-the-trademark-register/, accessed 7-7-2024 | maubu
Nonsense marks do not look like trademarks typically look or work the way the trademark system assumes they are supposed to. But because of that quality, rather
than in spite of it, nonsense marks easily meet all of the formal requirements for trademark registration and may even receive stronger protections than do many
more typical marks.60 Put another way, within the existing registration system, everything but common sense indicates that these words should be valid
trademarks. II. The Harms of Nonsense Marks Though nonsense marks are at odds with the purposes of the trademark system, the ease with which they qualify for
registration is not necessarily a problem in and of itself. Unlike marks that might confuse or deceive about a product’s source of origin, it does not seem that the
presence of nonsense marks in the market will directly harm consumers or lead them to buy products they do not intend to. Since consumer protection has become
the guiding normative justification for trademark law,61 the question for nonsense marks, as it is for other nontraditional proposed marks, is why not offer
trademark protection?62 However, as scholars like Professors Rebecca Tushnet and Mark McKenna have noted, trademark law’s primary focus on consumer
protection is both recent63 and limited.64 Any
choice to expand trademark protection in a new way can impose
burdens beyond those for consumers, including burdens on the USPTO, on competitors, and on the
trademark system in general. It is along these metrics that the existence of nonsense marks on the Register presents the potential for tangible
harm.

First, and most basically, applications for nonsense marks place further stress on an already-strained
USPTO. Trademark applications have increased continually in recent years. In 2019, the USPTO received 485,444
applications, the tenth year in a row in which the number of applications broke the previous record.65 This means that USPTO examiners are receiving thousands of
applications a day and are tasked with assessing whether they should proceed to the Register. Even under normal circumstances,
“maintaining the registration system requires the investment of substantial government and private
resources.”66 But faced with the twin problems of fraudulent filings and unused marks that remain on
the Register, the USPTO has instituted reforms aimed at ensuring that the Register consists only of marks that are currently, actually being used in
commerce.67 While these are welcome changes, they consume additional time and resources of the USPTO. Against this backdrop, when the

owners of nonsense marks, many of whom are not seeking the traditional benefits of trademark
registration, file applications with the USPTO, they impose a further burden on the agency. Indeed,
examiners, wary of fraudulent marks from China in general, may spend even more time than usual reviewing nonsense marks from Chinese companies.68 By

calling on the resources of the USPTO to achieve their owners’ Amazon-related objectives, nonsense-
mark applications themselves impose costs on the USPTO, as well as on other applicants affected by
examiners’ greater caseloads and slower review processes.69
Once nonsense marks make it onto the Register, they have the potential to inflict further harm, particularly on traditional mark owners. While trademark
registration imparts many benefits to mark owners, its primary public benefit is “in the value of the trademark register as a source of information,” allowing
businesses to “discover quickly and cheaply which signs third parties already have claimed.”70 To avoid opposition from the USPTO or other mark owners, those
seeking to register new marks must avoid words that might be seen as confusingly similar to existing marks.71 This is where the anticompetitive potential of
registered nonsense marks begins. While traditional mark owners probably will not be interested in nonsense marks, at least some of these marks are just a couple
of letters off from “working” in English. For example, MAJCF is quite close to MAJI, while JANRSTIC is not far from the more viable JANSTICK. If JANSTICK were
already on the Register, the mark owner might be compelled to invest time and resources arguing that the similar but nonsensical mark presents a likelihood of
confusion. Worse,
if nonsense marks make it onto the Register first, potential registrants, already facing a
diminishing number of “good,” available trademarks,72 might be hesitant to apply with their marks
out of fear of a likelihood-of-confusion rejection.73 This chilling effect would be particularly acute for
smaller businesses, which may not be able to afford a potentially lengthy and expensive registration
battle.74
Compounding the problem, trademarks that appear on the Register are afforded a “robust presumption of rights that is incredibly difficult to unravel,”75 including a
presumption of validity.76 These
protections would make it more difficult for would-be users of similar marks to
challenge the nonsense marks’ position on the Register or prevail in a lawsuit. And, most cynically, owners of
nonsense marks might use their registrations in overtly anticompetitive ways, bringing lawsuits against or sending cease-and-desist letters to users of arguably
similar marks in bad faith, in order to extort money from those users.77 Thus, in spite of their relative uselessness as traditional source signifiers, nonsense marks
on the Register have the potential to chill producers seeking to develop marks in an increasingly crowded field, to prompt costly litigation, and even to be
weaponized by bad faith actors taking advantage of the trademark system. These anticompetitive possibilities can and should be the concern of trademark law.78
Finally, nonsense marks place considerable strain on the metrics that trademark law relies on to function.
As an initial matter, and as suggested above, nonsense marks challenge the ability of the Abercrombie spectrum — thought of as “the most black-letter of all the
black-letter trademark law”79 — to identify the value of and consumer reaction to different categories of marks. Though Abercrombie may be an imperfect
standard to begin with,80 it remains a foundation of trademark law, frequently relied on by courts and USPTO examiners.81 Nonsense marks on the Register
deepen the cracks in the foundation of one of trademark law’s major sorting mechanisms, calling into question Abercrombie’s legitimacy as an indicator of what
makes a “strong” mark and leaving it less stable for those who look to it for guidance.
 Increasing Trademarks Good
The trademark office is already solving fraudulent fillings in the status quo
Belinda Scrimenti, 7-13-2022, "USPTO Continues Efforts to Battle Fraud and Improve Trademark
Register Integrity", International Trademark Association, [Link]
updates/uspto-continues-efforts-to-battle-fraud-and-improve-trademark-register-integrity/, accessed 7-
7-2024 | maubu

Amid a 40-percent surge in U.S. trademark applications during the pandemic, the
U.S. Patent and Trademark Office (USPTO) has
been working on several fronts to improve the security of the trademark filing system and protect
trademark owners from fraud, theft, and abuse. While applicants previously enjoyed an examination process in which a first Office
Action or approval for publication was issued in less than three months, the historic rise in the number of applications has increased average wait times to seven to
eight months during the USPTO’s fiscal quarter ending March 2022. (See the USPTO’s data dashboard). In addition, the mounting number of applications has caused
delays in other areas, such as renewals and overall pending application inventory, as well as an increase in fraudulent applications. The volume of fraudulent
applications has raised a range of issues. One significant focus is on fake specimens and allegations of actual “use in commerce” found in applications and post-
registration renewals. Other concerns include invalid attorney and applicant signatures, false addresses, and false, hijacked, or “rented” U.S. attorney credentials on
applications and affidavits of use. The U.S. Department of Commerce, Office of Inspector General (OIG) audited the USPTO’s trademark fraud risk framework
(looking at applications filed between October 2, 2019, and April 30, 2020) and in August 2021 reported that new controls were needed to combat this increase in
suspicious filings. At the time, USPTO
leadership stated that it had earlier recognized this trend and that it
initiated steps to deal with suspicious filings beginning several years before the OIG’s report. In 2019, the USPTO created—
and now has stated it is expanding—a special fraud task force comprised of attorneys, analysts, cyber investigators, and IT personnel to investigate suspected
violations of U.S. filing rules. To improve trademark register integrity, the USPTO implemented a rule in 2019 requiring foreign domiciled applicants to be
represented by U.S.-licensed attorneys for the purpose of increasing compliance with U.S. trademark law and USPTO regulations. Further, identity verification for all
The
U.S. trademark filers—a step the USPTO has said is intended to safeguard the trademark registry—will become mandatory on August 6, 2022.

Trademark Modernization Act of 2020 (TMA) is also beginning to assist the USPTO in its efforts to
battle fraud. As required under the TMA, and implemented on December 27, 2021, the USPTO has begun receiving petitions from third parties to cancel
registrations believed to never have been validly used, through new non-use expungement and reexamination proceedings. At INTA’s 2022 Annual Meeting Live+,
on May 1, 2022, USPTO officials reported on the status of the new non-use proceedings to members of INTA’s Trademark Office Practices Committee, USPTO
Subcommittee. They noted that the proceedings have direct links to the USPTO’s anti-fraud efforts,
including petitions that provide valuable information to the USPTO fraud task force on patterns and
sources of fraudulent filings for referral to the USPTO’s Office of Enrollment and Discipline (OED), which
handles U.S. attorney disciplinary matters, as well as evidence for USPTO Director-initiated non-use and sanctions proceedings. Further, both the USPTO

and the OED have deepened anti-fraud efforts. The USPTO has issued numerous show-cause orders in recent years for suspected
violations and final orders for sanctions if responses are inadequate. These orders have terminated tainted applications and blocked fraudulent filers’
access to the U.S. trademark filing system. In one notable recent order on January 25, 2022, In re Abtach, Ltd., the USPTO barred several entities and their parent
companies from further communication with the USPTO. Their
accounts were permanently deactivated and thousands of
pending trademark applications handled by the respondents were terminated. In another show-cause order issued
on June 30, 2022, the USPTO alleged that respondents Yanhua Chen and Huang Yuchen falsely designated certain U.S. licensed attorneys for more than 350
applications. The USPTO discusses its efforts and lists show-cause and sanctions orders here.

The general consensus is that on balance, strong protections create innovation and
high quality products.
Nicola Bottero, et. al., xx-xx-2007, "The Extended Protection of "Strong" Trademarks", Marquette
Intellectual Property Law Review, vol. 11, no. 2, pp. 274-275.,
[Link] accessed
7-9-2024 | maubu

Economists generally agree on the fact that trademark protection creates an incentive for the
production of quality goods.46 However, this function is presented by economists in two different versions. Some authors claim
that trademark protection induces firms to offer goods with a precisely defined and constant quality .47
For others, trademark protection makes firms produce high quality goods, and the aggregate effect is to
increase the average quality of goods throughout the whole market.48 The adoption of the latter approach may be
crucial to providing a rationale for the extended protection of “strong” and famous trademarks. Take, for instance, the primary finding of
Landes and Posner: the higher the quality of products, the greater the incentive to invest in order to create a “strong” trademark.49 Although
Landes and Posner put forth a seminal contribution in the economic literature on trademarks, their findings are affected by several limitations
as related to the aims of our research. First, Landes and Posner tacitly assume that the activities that create a “strong”
trademark,
such as the production of high quality products and advertising, are perfect signals to consumers regarding the
characteristics of products.50 Second, their model mainly concerns firms that are attempting to build a “strong” trademark;51 what
really is at stake in real markets, though, is the extended protection of brands that are already “strong.” And third, their model deals with the
use of trademarks within a product class; the possibility of non-homogeneous goods is included, but the phenomenon of brand extension is not
considered.52 This same limitation characterizes the work of others as well.53
 International Trolls

Different countries trademark systems allow trademark trolls to harm US companies

Cmandm (2019) Trademark trolls overseas, Campolo, Middleton & McCormick, LLP. Available at:
[Link] (Accessed: 08 July 2024). SS

A U.S. trademark registration allows companies to leverage their brand and prevent others from using their name or a confusingly similar name
in the U.S. However, even if a trademark is protected in the U.S., it is vulnerable to squatters or “trademark
trolls” overseas. Because of the global nature of business today, especially with online commerce and social media, it is important
for companies looking to expand internationally to control their trademarks globally and prevent others
from squatting on their rights. The last thing a company wants to find out is that it is prevented from expanding its
business overseas because it did not fully protect its trademark. While brands are increasingly global, managing and
protecting brands globally can be complex. In the U.S., trademark rights are based on actual use. By comparison,
trademark rights in many other countries are based on filing. The “first-to-file” system has allowed for a growing trend of
“trademark trolls” – companies or individuals who strategically register trademarks belonging to others and then demand
large sums of money to sell the trademark back to the original owner or bring an infringement action to enforce their
rights as the lawful owner against the original owner. This is exactly what happened to Tesla, Apple, and many others when they sought to
expand into China. Therefore,
companies planning to expand overseas should consider filing registrations in
other countries before someone else does. Specifically, companies seeking further opportunities overseas and are
looking to remain in the market long-term should ensure that their brand is protected internationally.
Ideally, promptly registering trademarks in a country should be undertaken before any products are sold or manufactured there. However, this
is not without complications. Many “first-to-file” jurisdictions allow for the trademark registration to be canceled if not subsequently used in
commerce within a certain time frame. Therefore, it is important to identify and prioritize the key markets and understand the jurisdiction’s
trademark laws. Although it does take time and resources to register a trademark in different countries, the alternative of exporting
goods to another country without a registered trademark leaves the brand unprotected and open to
considerable risk.
Patents
 Trolls Bad
Patent trolls bad and undermine innovation
Max Baucus (He served as Chairman of the U.S. Senate Committee on Finance from 2001 until 2003,
and again from 2007 until 2014) “It’s Time for the U.S. to Tackle Patent Trolls” September 16, 2022
[Link]
The Biden administration and Congress have recently made a series of commitments to support industries that are of high strategic importance.
The Inflation Reduction Act and Chips and Science Act provide much-needed resources to bolster advances in green energy and increase our
domestic supply of semiconductors – two critical long-term priorities. Yet, there’s
another significant challenge facing our
innovation economy, one that often goes under reported. Abusive patent lawsuits against some of our most innovative
companies are on the rise, forcing more and more successful businesses to delay hiring new workers,
raising wages, and developing new products. Instead, they’re forced to spend money defending themselves against meritless
accusations. The wealthy investors who file these abusive lawsuits, and are often referred to as “patent trolls,” buy up portfolios of broad,
unused patents that, in many cases, the U.S. Patent & Trademark Office (USPTO) never should have issued in the first place. They then assert
the low-quality patents in lawsuits to accuse others of patent infringement – all this even though the patents being asserted will continue to go
unused. The impact on American innovation is devastating. According to one study, each year, patent
trolls create $29 billion in
direct, out-of-pocket costs from the companies they go after. Another study found that the companies that
settle with patent trolls, or lose to them in court, wind up reducing investments in research and
development by an average of more than $160 million over the next two years. Massive amounts of money are
being drained from the hardworking people who are driving our economy forward to instead line the pockets of wealthy investors who are
offering no goods or services of their own. The problem is especially threatening for progress in areas like the
renewable energy sector, an industry where products often rely on hundreds or even thousands of underlying patents. U.S. leadership
in green technology is critical both to curb emissions and because renewable energy has the potential to be a hub of innovation and strategic
advantage for decades to come. The
USPTO recognizes the sector’s importance, and its climate change mitigation
program will foster research and development in this area. Yet, automakers and other companies generating
cutting-edge technology in this sector are constantly forced into battles with patent trolls that drain
resources and delay innovation. Letting patent trolls slow down green-energy advancements would be a colossal mistake. Critics
say that the problem of patent trolling is an invention of large corporations, and that cracking down on patent trolls will mean hurting “the little
guy.” These assertions are not backed up by the data: Analysis has shown that almost 60% of the companies sued by patent trolls are small or
medium-sized; patent-troll litigation costs smaller companies more relative to their revenue; and when infringement claims are settled out of
court, smaller companies again pay patent trolls more relative to their revenue. It is past time for Washington to fix this broken part of our
patent system and ensure innovators and entrepreneurs have the tools they need not just to get by, but to get ahead.
 Trolls Good
Increase in patent litigation due to trolls is nothing new, but it shows a healthy and
dynamic economy.
Stephen Haber and Ross Levine [Mr. Haber is a professor of political science and senior
fellow of the Hoover Institution, where he directs the Task Force on Intellectual
Property, Innovation and Prosperity. Mr. Levine is a professor of business at the
University of California, Berkeley, and a senior fellow at the Milken Institute.] , 6-29-
2014, "Stephen Haber and Ross Levine: The Myth Of the Wicked Patent Troll", WSJ,
[Link]
1404085391 (Accessed July 7, 2024) CR
Patent-reform activists point out that the number of patent lawsuits has increased by about 60% since 2000, which they cite as evidence that
there is a serious problem with the patent system. But does
the uptick in lawsuits actually indicate such a problem? In
short, no. It might instead reflect a healthy, dynamic economy. Rapid technological advances have spurred
more innovation and patents, and courts are now clarifying the nature and boundaries of intellectual
property and contract rights. As our colleague Zorina Khan of Bowdoin College showed in a September working paper, the spike
in litigation is similar to what happened in the 19th century when the telegraph, telephone and
automobile were introduced. Conflict among firms, some of which will naturally spill over into the courts, happens any time
disruptive technologies appear. The truth is that patent reform activists have not provided any evidence that the
current patent system or Patent Monetization Entities—PME's, the technical, non-pejorative term for a "patent troll"—have
hindered innovation and entrepreneurship. To make a convincing case for reform, they would have to prove that the current
system is hurting what the public cares about: the quality of the products we buy and the prices we pay for them. Research we conducted with
Alexander Galetovic of the Universidad de Los Andes found that innovation
rates have been strongest in exactly the
industries that patent-reform advocates claim are suffering from "trolls" and a broken patent system.
The innovation in these industries is matched with a rapid decline in prices. For example, since 1992, the quality-
and-inflation-adjusted price of telephone equipment has fallen by 6.7%, televisions by 14.4% and portable computers by 26.7% a year. Patent-
reform activists typically respond to this record with some variation of "yes, but price declines could have been even faster were it not for
wasteful litigation." Well, maybe, but thanks in large part to the patent system we have, the current rate of
invention in the U.S. might be the fastest in human history. Where is the evidence that society would benefit from
undertaking the risky process of reforming a patenting system that has been the envy of the world for more than two centuries? There is
one basic reason behind the attacks on trolls: Big Money. Many patent-intensive products—the smartphone in
your pocket, the laptop computer in your briefcase—are produced by big corporations that license many patents. The
iPhone is a classic example: It contains thousands of patented components, but Apple does not own many of the key ones. It must negotiate for
the right to use them. These
corporations can make higher profits the less they pay to use patented
technology they do not own, and higher profits still by paying nothing at all. The battle over the "right price" for
patented technologies takes many forms, one of which is political. Indeed, some corporations are looking to gain a competitive edge by
changing the rules of the game. The strategy is to pass patent-reform legislation that weakens the negotiating position of patent holders.
Corporations that pay large sums for patented technologies will point to lawsuits, trolls and anything else that will encourage lawmakers to
pass such reforms. But when
policy makers consider reforming the patent system, they should not rely on
often repeated, but never substantiated, claims that patent trolls and lawsuits stymie innovation and
the commercialization of complex technologies. They should demand robust evidence that the current
system is slowing down innovation. That evidence does not exist.
Random
 Innovation – Alt Cause
Over Publication of research articles is the true cause of the loss of innovation in the
United States. Four Factors.
Besanceno 5/1/ 2024 [Professor of Economics at the Department of Economics and Management
Sciences of the Panthéon - Assas University Reluctance to pursue breakthrough research: A signaling
explanation [Link] Accessed:
7/7/2024 LMJ
the presence of a potentially small number of low-skilled researchers
In our imperfect information model,
imposes a negative externality on high-skilled scholars, which imposes overpublication as a costly
signaling strategy for the latter. In equilibrium, the analysis reveals (1) systematic underinvestment in
exploratory research by high-skilled scholars (compared to the first-best perfect information setting), (2)
systematic overinvestment in publishing papers (incremental advances), (3) decreased efficiency of resource-
based incentives for research, as some of these incentives result in increased publishing, (4) decreased
efficiency of reward-based incentives for research, since in the separating equilibrium with output limit,
how much time high-skilled scholars dedicate to writing papers depends on the maximum publication
output of the low-skilled scholars, and not on the relative reward associated to the two intellectual
productions.
 AI Restrictions Fail
Other proposals to limit AI have been issued, but proposals meant to restrict AI are
deeply flawed
Huddleston, J. (2024, January 24). The Rush to Regulate AI Could Be the Death of Parody. Cato
Institute. Retrieved July 8, 2024, from [Link]
death-parody [CR]

The problem with regulations that purport to limit the malicious use of AI is that many of them would
also take away the beneficial and benign uses of AI that we see in the creative arts. AI is used in many
elements of the creative process already — for instance, the bill’s broad terms could make it difficult to
develop AI tools in film editing or make it harder to use existing tools that can lower post-production
costs by not having to bring back an individual to re-record lines. Beyond that, the proposal could take
away the ability to engage in certain types of content, like parody or sampling. This type of speech has
been previously protected by the courts as “fair use,” so a ban on it likely violates the First
Amendment. One of the key problems with trying to regulate AI is trying to define it. The definition of
artificial intelligence, at its most basic, is the use of programming or machines rather than a living being
to solve problems. As a result, the average consumer has been using AI much more frequently and more
often than they realize. AI is already in our online searches, the chatbots with which we interact, and the
mapping algorithms that help us find the fastest route in traffic. The bill recognizes that there are
potential First Amendment concerns, so the text establishes a “First Amendment defense” (something
that highlights the proposal’s many problems). An abundance of caution to ensure compliance could
result in a chilling effect on existing things like parody TikTok videos, AI-generated political cartoons, or
even translating a message to another language if it was in the original speaker or singer’s voice.
Reason’s Elizabeth Nolan Brown noted that if this measure becomes law, she expects to see “a lot more
takedowns of anything that might come close to being a violation, be it a clip of a Saturday Night Live
skit lampooning Trump, a comedic impression of Taylor Swift, or a weird ChatGPT-generated image of
Ayn Rand.” “I would also expect to see more platforms institute blanket bans on parody accounts and
the like,” Brown added.
 Trademark Solvency Advocate - Immoral and X Provision – Obscenity

In order to protect the first amendment, the Lanham act needs to be interpreted as
limiting the immoral or scandalous provision to obscenity
CHRIS COCHRAN 2019 1 The author is a May 2018 graduate of theSMU DedmanSchool of Law. He
would like to thank everyone who assisted him in the preparation of this [Link]’S “FUCT”: THE
DEMISE OF THE LANHAM ACT [Link]
_the_demise_of_the_lanham_act.pdf

Aiding the Fight the judicially accepted definition of the phrase, marks depicting obscene material naturally fit the
bill. By declaring the immoral or scandalous provision unconstitutional, and refusing to limit it to
obscenity, the majority blatantly ignored the definitional match and instead opened the door for the
proliferation of discomforting marks. As referenced in Part IV.A supra, though not a point Brunetti presupposes proper
application of the immoral or scandalous provision by the USPTO historically. In rejecting the obscenity limitation, the
majority relied on the fact that provision involved blasphemous marks touching on religion, which were
not obscene At the same time, the majority . determination is made in the context of contemporary
attitudes, the concept of what is actually immoral or The fact that examiners used the provision to strike down religious
words or symbols during the 1930s,164 a period of religious involvement in the lives of those affected by the Great
Depression,165 does not mean this application was proper in and of itself at the time and shouldnt control
today. Indeed, in In re Riverbank Canning Co., the first case dealing with the immoral or scandalous provision for rejecting anything, the fact
that the USPTO, after rejecting the mark twice, 2008 signals this [Link] course, the movement away from barring registration of religious
words or symbols coincides with a shift in contemporary attitudes. majority of [US]PTO rejections under the immoral
Similarly, the focus of the cases which the Federal Circuit has reviewed under the immoral or scandalous
provision is the same— sex.172 It is difficult to comprehend the provision to obscenity when USPTO examining
attorneys, claiming to act on contemporary attitudes, primarily reject marks related to sex. to prevent
the registration of even the most patently obscene Such a conclusion is inconsistent with the accepted purpose
of the immoral or scandalous provision. As previously mentioned, no legislative history exists to discern the Congressional intent
in passing the immoral or scandalous provision.175 Still, however, the principal of legislative inaction suggests Congress
consented to the propriety; disgraceful; offensive; disreputable; . . . giving offense to the conscience or moral feelings; .
. . or calling out If anything falls within this definition, it is obscene material. By refusing to limit the immoral
or scandalous provision to obscenity, the Federal Circuit has exposed the public to potential marks much
worse than anything anticipated by the framers of the immoral or scandalous provision.

Edit lanham act

CHRIS COCHRAN 2019 1 The author is a May 2018 graduate of theSMU DedmanSchool of Law. He
would like to thank everyone who assisted him in the preparation of this [Link]’S “FUCT”: THE
DEMISE OF THE LANHAM ACT [Link]
_the_demise_of_the_lanham_act.pdf

The lanham acts purpose is to guard trademark owner against trademark infringement and unfair competition,
and the public against confusion and inaccurate While the unconstitutionality of the disparagement and immoral or
scandalous provisions does not affect this purpose, the analyses invoked by the Supreme
Court and U.S. Court of Appeals for the Federal Circuit may. As this article demonstrates, these analyses also apply to
several other provisions of the Lanham Act. If challenged, courts may find these other provisions also unconstitutionally
violate First Amendment freedom of speech principles. If that occurs, marks capable of infringing or causing confusion
will flood the market, severely undermining the stated purpose of the Lanham Act. Courts need to
construe statutes narrowly to preserve their constitutionality and, where possible, adopt a saving
construction of the provisions of the Lanham Act to prevent this result. Although the Federal Circuit refused to find a
saving construction of the immoral or scandalous provision in Brunettia Where possible, courts should in provisions to match already
existing judicial analyses. Since application of the obscenity limitation to the immoral or scandalous
provision is reasonable, if the government correct. This limitation is necessary not only to protect the
marketplace from the proliferation of offensive marks but also to set the tone to save the Lanham Act
from an apocalyptic meltdown.