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07/19/2015

Alexander Kasner: The Original Meaning of Constitutional Inventors
Michael Ramsey

Alexander J. Kasner (Stanford Law School '15) has posted The Original Meaning of Constitutional Inventors: Resolving the Unanswered Question of the MadStad Litigation (68 Stanford Law Review Online 24 (2015)) on SSRN.  Here is the abstract:      

In litigation that garnered national attention, a “garage inventor” of a new design for motorcycle windshields challenged the Leahy-Smith America Invents Act (AIA) as unconstitutional under the U.S. Constitution’s Patent Clause. The basis of the challenge in the case — MadStad Engineering, Inc. v. U.S. Patent & Trademark Office — uncoils as a pleasing syllogism: the AIA transitioned the American patent system from first-to-invent to first-inventor-to-file. The plaintiff argued that the Patent Clause, in enumerating to Congress authority to grant patents, limited the right to “inventors” who were the first, in time, to invent. To complete the circuit: a first-inventor-to-file system is unconstitutional insofar as it grants patent rights to inventors who were second to conceive but first to reach the patent office.

The suit was dismissed at the district court level on standing grounds, with the court relying almost entirely upon the newly minted precedent of Clapper v. Amnesty International, USA. The U.S. Court of Appeals for the Federal Circuit affirmed this dismissal last year. The central constitutional question of the suit, however, persists unresolved, as the appellate court took care “not [to] reach MadStad’s constitutional arguments.” Some critics have argued that the plaintiff’s interpretation is impractical; others have contended that potential plaintiffs cannot demonstrate a sufficient causal link to the alleged injury suffered. In what follows, I use the MadStad litigation to draw out a concentrated analysis of what modern courts might consider dispositive for purposes of discerning the metes and bounds of the Patent Clause: the text and the original understanding.