First to file and first to invent: Difference between revisions

Revision as of 07:48, 1 November 2018

Revision as of 07:53, 1 November 2018

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The [[America Invents Act]] signed on 16 September 2011,<ref>[http://www.whitehouse.gov/the-press-office/2011/09/16/president-obama-signs-america-invents-act-overhauling-patent-system-stim 16 Sept 2011 whitehouse.gov press release re signature of AIA]</ref> switched U.S. right to the patent from the previous "first-to-invent" system to a "first-inventor-to-file" system for patent applications filed on or after 16 March 2013.<ref name=aiaeffective>[http://www.uspto.gov/aia_implementation/aia-effective-dates.pdf USPTO: "America Invents Act: Effective Dates"]</ref>

Many legal scholars<ref>[http://www.docs.piausa.org/Article%20I%20and%20the%20First%20Inventor%20to%20File-%20Patent%20Reform%20or%20Doublespeak_%20=%20IDEA-vol50-no3-glenn-nagle.pdf Glenn and Nagle: "Article I and the First Inventor to File: Patent Reform or Doublespeak?", in IDEA—The Intellectual Property Law Review, Volume 50, Number 3 (2010)]</ref><ref>[http://heinonline.org/HOL/LandingPage?collection=journals&handle=hein.journals/johnmars6&div=13&id=&page= Simon: "The Patent Reform Act's Proposed First-To-File Standard: Needed Reform or Constitutional Blunder?", in ''The John Marshall Review of Intellectual Property Law'', 2006]</ref><ref>[http://www.rearden.com/public/090413_First_to_File_scholarly_papers_in_last_10_years-1.pdf Selective compilation of papers on FTF constitutionality published between 2001-2009 (9 papers)] {{webarchive|url=https://web.archive.org/web/20110720004424/http://www.rearden.com/public/090413_First_to_File_scholarly_papers_in_last_10_years-1.pdf |date=2011-07-20 }}</ref> have commented that such a change would require a constitutional amendment. [[Copyright Clause|Article I, Section 8, Clause 8]] of the US Constitution gives Congress the power to “promote"promote the Progress of &nbsp;... useful Arts, by securing for limited Times to &nbsp;... Inventors the exclusive Right to their respective &nbsp;... Discoveries.” These scholars argue that this clause specifically prohibits a first-inventor-to-file system because the term "inventor" refers to a person who has created something that has not existed before.

The change has not been short of detractors. For example, the [[IEEE]] stated in its submission to the [[House Judiciary Committee]], charged with the study of the Patent Reform Act of 2007, that "We believe that much of the legislation is a disincentive to inventiveness, and stifles new businesses and job growth by threatening the financial rewards available to innovators in U.S. industry. Passage of the current patent reform bill language would only serve to relax the very laws designed to protect American innovators and prevent infringement of their ideas."<ref name=ieee>[http://ieeeusa.org/policy/POLICY/2007/082707.pdf Meredith and Grzelak: "“LetterLetter to House and Senate Leaders and Judiciary Committee Members Opposing Adoption of the Patent Reform Act of 2007 (S. 1145/H.R. 1908)".” The Institute of Electrical and Electronics Engineers, Inc. – United States of America, 27 August 2007]</ref>

Proponents argue that the FITF aligns the U.S. with the rest of the world, according to the original U.S. patent system, and brings more certainty, simplicity and economy to the patent process, all of which allow greater patent participation by startups.<ref>{{cite web|last=Koenig|first=John|title=America Invents Act is Better for Small Business|url=http://johnkoenig.com/the-america-invents-act-is-better-for-small-business/|accessdate=21 September 2011}}</ref>