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While sailing on the Chesapeake Bay this past Labor Day weekend, my mind started to drift (as it often does while sailing) to patent-law-related issues, and at some point the following question popped into my head: who actually invented Labor Day?  But the Bay was crowded, and visions of Title 37 of the Code of Federal Regulations, a patent lawyer’s sugar plums, were quickly replaced by me racking (not “wracking,” for you purists) my brain for specific passages of Title 33 (a candy bar to anyone who can identify 33 CFR without looking it up), and remained there, appropriately so, until we were back at the dock.

As it turns out, although Labor Day is not that old a holiday – it became a national holiday in 1894 – a significant question of inventorship surrounds this most useful of innovations.  It may have been invented by a man named McGuire.  Or it may have been invented by a man named Maguire.  The McGuire in question is Peter McGuire, a labor organizer and co-founder of the American Federation of Labor, who perched himself on the podium during a meeting of the New York Central Labor Union in May of 1882 and announced that the nation should celebrate laborers with a special day that included parades and general festivities.  Over time, McGuire’s fame was eclipsed by AFL co-founder Samuel Gompers who, rumor has it, won the AFL presidency by beating McGuire at the Nation’s first pushing-a-hoop-with-a-stick race, ironically at a Labor-Day cook out.  (Those rumors are unconfirmed.)

Another possible contender for the title of inventor is Matthew Maguire, Secretary of the Central Labor Union.  In September of 1882, Matthew Maguire, being a labor firebrand, helped organize what may have been the first parade and picnic for members of his labor union.  (Some patent historians also believe that the clean-shaven Maguire became the first non-practicing entity when he sued Abner Doubleday for infringing his patent titled “An Improved Elixir for Removing Salt Water Taffy from an Old-Timey Mustache.”)

Of course, a patent attorney will look at the dates above and immediately see that May of 1882 has priority over September of 1882.  Before we perform that analysis, however, we must assume that the facts are accurate, and that Messrs. McGuire and Maguire are different people.  But can we be sure?  And what are the consequences of that uncertainty?

Title 35 of the United States Code, the title that governs patent law, does not directly define what it means to be an inventor.  Rather, that definition has been argued and fleshed out over the decades in caselaw, and boils down, roughly, to one who (i) conceives the invention; and (ii) reduces it to practice.  (Note that 37 CFR s. 1.9 provides the question-begging definition of “Inventor” as “the individual . . . who invented or discovered the subject matter of the invention.”)  Of course, both conception and reduction to practice each have their own boundaries and rules, but those boundaries and rules are the subject of another article.  Assuming that, as a patent attorney, you know who the inventor is, your job is to list the inventor properly on the application and on the attendant forms.  The reasons for this are highly practical.  If an inventor is not properly named on a patent, that inventor may not have standing to sue for patent infringement in federal court.  In addition, if an inventor is not properly named on a patent, a patent examiner or applicant, may not be able to successfully search for a patent by the inventor’s name.  On a related note, if a company’s inventors are not properly listed on a patent application, chain of title may be difficult, even impossible, to establish during M&A-related due diligence.

To avoid these sorts of misfires, the courts have imposed rules and penalties for mis-stating an inventor on an application.  An examiner may reject an application (or parts of an application) if the inventor is listed improperly.  If inventorship is wrong, standing to sue aside, the entire patent may be found unenforceable (again, the subject of another article).

Of course, honest mistakes, including scrivener’s errors, are easy enough to correct (with a fee), but I will not include that process here.  Rather, I will state the punchline, the practice tip of the day, as clearly and as succinctly as I can: get it right the first time.  Before submitting your patent application, cross check the name listed on your patent application with (i) your declaration; (ii) your assignment; and (iii) your application data sheet.  They should be identical.  It’s that simple.  In other words, don’t list “McGuire” on your declaration, while listing “Maguire” on your application data sheet.

For those of you still interested in the Labor-Day inventorship controversy, my vote goes to Peter McGuire.  Aside from the fact that Matthew Maguire became an increasingly radicalized socialist (yes, that was a political issue back then), Peter McGuire was the first to conceive the invention, in May of 1882.  And even if we have no record of him reducing his conception to practice, given the improvements in Sarsaparilla technology back in the 19th century, one skilled in the art would definitely know how to throw a picnic.

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