Pro Se Applicant: Reinstatement Denied

 Korsinsky v. Dudas (Fed. Cir. 2007) (NONPRECEDENTIAL [but citable] OPINION).

Korsinsky, an individual inventor, allowed his patent to expire for failure to pay the maintenance fee. After the PTO refused to reinstate the patent, he brought this federal action.

The patent in question (4,736,447) is related to automatic data processing of a video feed reaches back to a 1983 filing date.  The patent itself issued in 1988, but the patentee did not make the first maintenance fee payment at 3.5 years. Thus, the patent expired in 1992. Twelve years later (in 2004), Korsinsky filed a petition for reinstatement based on the patentee’s statement that “the notice of maintenance fee was not received.” After being denied reinstatement by the PTO, Kirsinsky first requested a refund and then attempted again to get reinstatement.

Cause of action:

Mr. Korsinsky’s main argument on appeal is that the PTO has designed a system with tricks and traps that duped him into disclosing his invention and paying substantial sums only to have his invention later confiscated. He argues that this system violates Article I, Section 8, clause 8 of the United States Constitution, which grants Congress the power “[t]o promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”

On appeal, the CAFC sided with the USPTO and district court — determining that the maintenance fee system is constitutional and has not been arbitrarily or capriciously enforced.

Notes:

• John Whealan (pictured at right) handled the PTO’s brief. Mr. Whealan has been the USPTO Solicitor since 2001.