In the wake of the Apple-Samsung case, entrepreneur Mark Stadnyk is aiming to head off a patent law that he says will favour big companies and hurt lone inventors such as himself
IN SILICON VALLEY, Apple just won big against Samsung in the patent lawsuit of the year, after trading claims and counterclaims of pilfered product ideas. Across the country, in a federal court in Florida, an inventor named Mark Stadnyk is waging a different kind of patent warfare – an ambitious and perhaps quixotic legal foray.
Stadnyk, who holds a patent on a motorcycle windshield, is suing the US government, aiming to head off a patent law that he says will favour big companies and hurt lone inventors such as himself.
Represented by a prominent Washington lawyer, Stadnyk filed a suit last month that challenges the constitutionality of legislation that Congress passed last autumn, the America Invents Act. 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 America’s stature as the world’s leading innovator.
The present system, one of the nation’s oldest patent principles and called “first to invent”, relies on lab notebooks, emails and early prototypes to establish the date of invention. The impending law would overturn that by awarding patents to the inventors who are “first to file” with the US Patent and Trademark Office.
Stadnyk (48), a garage inventor who stumbled into the world of patents after he bought a powerful new motorcycle and wanted to avoid being battered by the wind when riding at high speed, 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.
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 Stadnyk and his wife, Patty. His adjustable windshield systems, priced from $100 to $320 (€80 to €159) , are now used on dozens of makes and models of motorcycles, and are sold through dealers in Australia, Britain and Spain, and the US. Yearly sales, he says, are more than $500,000 and growing briskly.
Stadnyk holds three patents, and he speaks of a patented idea as a uniquely human property right. “It came out of your mind,” he explains. “It’s not property you bought or inherited.”
Stadnyk became interested in the patent legislation as it proceeded. He says he studied the proposals and the law, read blogs and reached out to 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 US 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 policymakers. 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 armies of 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.
Yet the opponents are in the minority. And there is genuine debate about how much garage inventors and fledgling companies contribute to innovation and growth these days.
Stadnyk sees his courtroom quest as the intellectual property equivalent of the recent constitutional challenge to the Obama administration’s health insurance overhaul, in legislation that was narrowly upheld by the Supreme Court. “Others took on Obamacare, and this is my fight,” says Stadnyk, who lives in Ridge Manor, Florida. “Somebody’s got to do something.”
Stadnyk, who says he is a conservative, warns of the danger of the patent legislation in populist, anti-government terms. “My property would be given away by the government under this new law,” he says.
Yet there are liberals among the law’s critics as well. Stadnyk’s Washington-based lawyer in the suit is Jonathan S Massey. A graduate of Harvard law school, Massey was a clerk for the liberal US supreme court Justice William J Brennan jnr, and is a protege of Laurence H Tribe, a leading professor of constitutional law at Harvard. Massey worked on the case presented to the supreme court on behalf of former vice-president Al Gore in Bush vs Gore, an appeal that lost and effectively settled the 2000 presidential election.
The America Invents Act was a byproduct of years of lobbying and eventual compromise, especially by major technology and pharmaceutical companies. The new patent law was approved overwhelmingly in both the US House of Representatives and the Senate. Few focused on the potential of a constitutional problem.
California senator Barbara Boxer was an exception. Speaking on the Senate floor last year, she said: “I strongly disagree with changing the core principle of our patent system – awarding a patent to the true inventor – for the sake of perceived administrative ease.”
Boxer went on to say that the US constitution singled out and granted exclusive rights to individuals with new, useful ideas. “We are the only country in the world,” she said, “whose constitution specifically mentions ‘inventor’.”
Massey says he became involved in the legislative debate and this suit because of his background in constitutional law. The new patent law, he says, “violates the text and the original understanding of the constitution.”
Massey declined to say who would provide financial support if the case proceeded through appeals and higher courts. As a matter of confidentiality and courtroom tactics, he says he did not want to let “the other side know the size of my resources”.
The suit, according to some legal experts, faces long odds. The courts, they say, have treated the section of the constitution that concerns intellectual property rights as utilitarian doctrine subject to congressional interpretation.
“Congress is fairly free to do as it sees fit to promote innovation,” says Arti K Rai, a professor at Duke University school of law and a former senior official in the patent office.
Mark A Lemley, a professor at Stanford law school, says the constitutional challenge “is the legal equivalent of fringe science”.
“There are people who didn’t like the outcome of the patent legislation, and they may be right in not liking the outcome,” he says. “But that doesn’t make it unconstitutional.”
In Silicon Valley, Stephen G Perlman, a high-tech inventor and entrepreneur, worries about the law’s practical effect. His invention factory, Rearden, has produced a series of innovations and spin-off companies, including ones that make the technology for fine-grain computer-generated facial imagery used in Hollywood, and another company whose data-handling software generates photo-realistic, high-speed play for online gamers on tablet computers.
The new law, he says, with its emphasis on speed, could well make it more difficult to wait before filing an application, to take the time to experiment over years, and to confidentially show early concepts to investors to raise money.
“I’m scared that this law is a threat to the survival of our species – people who do fundamental, long-term invention,” Perlman says.
Gary Lauder, a venture capitalist, says the new law had the logic of trying to make the patent system more efficient and less prone to litigation. But he is a critic.
“This law favours large companies at the expense of small ones,” he says. “There wasn’t enough advocacy for unborn companies. And partly as a result of our current patent system, we do have a huge amount of innovation in America.” – (New York Times News Service)
