The name game

What's in a name?

Plenty, for a chief scientist whose career accomplishments were virtually erased when his name was removed from patents on products he worked to develop.

Inventor Anthony Czarnik of Reno has been searching for new employment since he left a former employer under strained circumstances four years ago, and he says a decision by San Diego's Illumina Inc. to leave his name off a patent has hurt that search.

"We're hired depending on recent inventions," says Czarnik. "It's a very real career opportunity component. A chief scientist with nothing under patent looks suspect. If my name's not on those patents, I'm an invisible man."

And, tampering with patent records should be worrisome to the company, he says, because patent law requires that the names of investors must be accurate. Companies that fail to comply can lose the right to enforce that patent.

Illumina, says spokeswoman Maurissa Bornstein, doesn't comment on pending litigation. In its most recent annual filing with the Securities and Exchange Commission, the company says, "We believe we have meritorious defenses against these claims."

The company, a publicly held maker of products for genetic researchers, earned more than $9 million in its latest fiscal quarter, and investors believe its future is so bright that its market cap is $2.5 billion.

Czarnik joined with two others to found Illumina in San Diego. As chief scientific officer, the chemist teamed with a molecular biologist and a venture capital firm associate.

Their creation: DNA micro arrays microscopic slides imbued with tiny dots of DNA that can bind to complementary strands of DNA.

The technology can be used to create drug treatments developed specifically for an individual patient. In future, a doctor can swab a DNA sample from a patient's mouth. When it's placed on a slide, certain dots will "light up" to show which DNA "keys" are resident in that patient. The doctor can then prescribe the most effective drugs for that individual.

Czarnik learned that his name had been stripped from the patents in late 2004, when he visited Illumina's updated Web site. Patents held by the company were still listed under intellectual property with one big change.

"My name had been deleted," he recalls, "while the names of other scientists who had not worked on the discoveries had been added."

So the former chemistry professor turned plaintiff, suing Illumina to have his name restored to the patents.

"It's not about the money," he says. "A company has the right to hire and fire, but the work product cannot be reassigned."

Czarnik says he ponied up half a million dollars of his own money to hire an attorney.

"I'm taking a risk," he admits. "You can only sue for things that are illegal. You can't sue for bad behavior."

It hasn't been easy to engage others in the cause. For starters, Czarnik discovered he was the first person ever to sue for patent recognition while seeking recognition, not monetary reimbursement.

"You can imagine how shocked I was that no one had even taken this to court under the same circumstances," he says.

The first step is successfully convincing a federal court to allow the suit to move ahead.

Mark A. Lemley, a scholar on intellectual property law on the faculty at California's Stanford Law School, says, "I've read the opinion. I think it's significant that the court held he could seek to have his name added to the patent even though he has assigned his rights, because it demonstrates the importance the world at large puts on patents."

After a four-month search for a patent attorney willing to take the case for a contingency fee, Czarnik finally found an employment specialist who took the case on a fee-plus- contingency basis.

The attorney, Anthony F. Pantoni in San Diego, says, "I have respect for his cause. Inventors often have frustration. If they don't own the patent they are at the mercy of employers."

But while legal theory was set, says Pantoni, the challenge of establishing legal precedent remains. On a personal level, he adds, looms the challenge of fully understanding the science behind establishing the claim of inventorship.

Another challenge is one common in employment cases.

"We start on uneven playing field because companies control the witnesses who still work for company. And the documents in question, which are company files. And they have more money," the lawyer says.

The suit was filed in summer and is scheduled to come to trial in the second quarter 2008.

"If we prevail, the other side will file an appeal in federal court, which will take another three years." Czarnik says.

In the meantime, he's hired a public relations firm, Levick Communications in Washington, D.C., and Czarnik hopes to engage support of organizations that represent inventors. His argument to public opinion includes morality as well as the law.

"Truthfulness is the bedrock of scientific evidence," he explains. "Science works on the precept of let the seller beware. If someone sells a mistake, they will be creamed by the scientific community. I want others to stand up and speak truth to power. It's the only way to keep power in check."