Uphill Fight against New U.S. Patent Law ; Inventor Sues to Block 'First to File' Statute That Some Say Hurts Start-Ups

Article excerpt

Mark Stadnyk is fighting a law that would overturn one of the nation's oldest patent principles by awarding patents to the inventors who are "first to file" with the U.S. Patent and Trademark Office.

In Silicon Valley, Apple has just won big against Samsung in the patent lawsuit of the year, after trading claims and counterclaims of product ideas pilfered. Across the country, in a court in Florida, an inventor named Mark Stadnyk is waging a different kind of patent warfare -- an ambitious legal foray.

Mr. Stadnyk is suing the U.S. government, aiming to head off a patent law that he says would favor big companies and hurt lone inventors like himself.

Represented by a prominent Washington lawyer, Mr. Stadnyk filed a suit last month that challenges the constitutionality of legislation that Congress passed last autumn, the America Invents Act. Mr. Stadnyk and his lawyer -- along with some academics, entrepreneurs and venture capitalists -- assert that the legislation is a triumph of corporate lobbying power over the founders' wishes, and that it threatens the United States' stature as the world's leading innovator.

The law would overturn one of the nation's oldest patent principles by awarding patents to the inventors who are "first to file" with the U.S. Patent and Trademark Office. The present system, called "first to invent," relies on lab notebooks, e-mails and early prototypes to establish the date of invention.

Mr. Stadnyk, 48, stumbled into the world of invention and patents after he bought a powerful new motorcycle and wanted to avoid the battering he received from the wind when riding at 60 miles an hour, or about 95 kilometers an hour, even with a windshield. He devised a system of brackets and gears to adjust the height and angle of the windshield and the gap between it and the motorcycle. With his system, he says, the rider feels a flutter of breeze instead of jolting winds and turbulence.

Mr. Stadnyk, who describes his invention style as "rough hacking with chunks of metal," founded his company, MadStad Engineering, in 2006, and as sales picked up, he stopped working as a computer consultant to devote himself to the business.

Today, MadStad employs eight people, including Mr. Stadnyk and his wife, Patty. His adjustable windshield systems, priced from $100 to $320, are now used on dozens of makes and models of motorcycles, and are sold through dealers in Australia, Britain and Spain, as well as the United States. Yearly sales, he said, are more than $500,000 and growing briskly.

Mr. Stadnyk holds three patents, and he speaks of a patented idea as a uniquely human property right. "It came out of your mind," he explained. "It's not property you bought or inherited."

Mr. Stadnyk became interested in the patent legislation as it proceeded. He says he studied the proposals and the law, read blogs and contacted Washington lawyers and academics who raised the issue of its constitutionality. A grassroots activist, he even made a couple of YouTube videos.

The shift to a first-to-file system, scheduled to take effect next March, is intended to simplify and streamline the current system, which can invite protracted litigation between competing inventors. The switch would also put the United States in harmony with patent offices in Europe, Japan and elsewhere, allowing them to share information and potentially ease the strain on overburdened patent examiners worldwide.

The efficiency argument is the mainstream view of corporate America and Washington policy makers. President Barack Obama declared that the new law would cut "the red tape that stops too many inventors and entrepreneurs from quickly turning new ideas into thriving businesses -- which holds our whole economy back."

But opponents say it will give big companies a huge advantage over start-ups and small inventors. Large corporations have deep pockets and lawyers to write up and file patents, they say, and the new law will touch off a paper chase to the patent office instead of a race to innovate. …

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