First to file and first to invent: Difference between revisions

Revision as of 00:29, 23 July 2020

Revision as of 16:01, 22 November 2020

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== USA change to first-inventor-to-file (FITF) ==

The [[America Invents Act]], signed by Barack Obama 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 previousa "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 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.