In my last article I explained the United States patent law which implements the ‘first to file’ patent application requirement, and which law becomes effective in March 2013. This change from a ‘first person to invent’ to a ‘first person to file’ system was the heated source of ongoing disagreement and debate in Congress between independent inventors and other interests for many years. Unfortunately, the possibilities for circumventing the disadvantages of this law are not practical or cost effective for most businesses.
Not surprisingly, the American small business community predicts that this new law will seriously disadvantage independent inventors. To affirmatively confront this situation, a small business and independent inventor has recently filed a lawsuit in federal court to halt implementation of this new law. The person driving this litigation is Mr. Mark Stadnyk, the owner and founder of MadStad Engineering in Florida. Madstad Engineering specializes in motorcycle innovation, and Mr. Stadnyck has developed a more aerodynamically suitable windshield for a motorcycle. Mr. Stadnyck’s upgraded motorcycle windshield eliminates excessive wind pressure and turbulence, and he currently holds a patent on this windshield.
Mr. Stadnyk’s concern as stated in his initial court document is as follows: U.S. patent law originated with the Founding Fathers and our Constitution. This constitutionally based system has always awarded patents to the first person to invent. Although the new law designates “first inventor to file,” as a practical matter a patent may be awarded to anyone who files an application prior to the first true inventor.
According to Mr. Stadnyk, the “first to file” system violates the United States Constitution which requires that Congress award patents to “inventors for the exclusive right to their respective discoveries.” U.S. Constitution, Article 1, Section 8, Clause 8. Therefore, he contends that the Constitution prohibits Congress from passing laws that award patents to anyone but the genuine inventors, and not to persons merely because there were the first to file an application.
Mr. Stadnyk continues by stating that a first to file law discourages innovation because individual inventors, startup small businesses and research organizations lack the resources to compete with large corporations in the race to file patent applications. Independent inventors and small business also cannot afford the expense of filing numerous applications that would be necessary to perfect invention, update a pending patent, or attract investors under this new law. Mr. Standnyk also contends that with the additional administrative derivation proceeding for resolving inventorship disputes under the new law, the patent office will be further burdened. There may also be a flood of hastily drafted, poorly explained patent applications which will increase the patent office backlog.
Mr. Stadnyk also challenges that portion of the new law that requires an oath in which the applicant must swear that he or she believes himself or herself to be the true inventor. According to Mr. Stadnyk, in reality the patent office will grant patent rights to fraudulent non-inventors, especially when there is no legal requirement that the applicant be the inventor for the patent to be valid. Mr. Stadnyk also states that exposing initial prototypes and concepts to outside product development vendors under the new law will result in increased theft of inventions. Consequently, most inventors will have no option but to develop and test their inventions solely within their businesses or other premises, to the extent possible. As a result, the independent inventors must file applications before products are fully developed.
© 2012 Adrienne B. Naumann.
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