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America: Last in Line for First-to-File

Who has the right to a patent for an invention?  Should it be the first inventor to file or the first inventor to invent?  The first-to-file system grants the right to a patent to the first inventor to file a patent application, regardless of the date of invention.  On the other hand, the first-to-invent system awards the patent to the inventor who first conceived of the invention and reduced the invention to practice.  The first-to-file system is used in all countries except the United States, which uses the first-to-invent system.  The U.S. was out of step with the rest of the world; however, about a year from now, the U.S. will switch on March 16, 2013 to a first-to-file system as a result of the Leahy-Smith America Invents Act enacted into law on September 16, 2011.  By adopting a first-to-file system, U.S. patent law will be brought in line with patenting in a global scheme.

As ideal as the new system may sound, it does not come without criticism.  The America Invents Act is a federal statute, passed by Congress and signed into law by the President, which was the result of a push to reform U.S. patent laws. However, Article I, Section 8, Clause 8 of the Constitution empowers Congress “To promote the Progress of Science and useful Arts, by securing for limited Times to … Inventors the exclusive Right to their … Discoveries.”  The language of the Constitution indicates that “inventors” – the first person to invent or true inventors – should be awarded patents.  The new patent law, by changing the system from first-to-invent to first-to-file, could be considered unconstitutional as it changes the meaning of the constitutional language and allows a subsequent inventor to obtain a patent over the true inventor of a patentable invention.  In order to properly adopt a first-to-file system, it may be considered necessary to amend the Constitution.

It is argued by the proponents of the first-to-file system that the first-to-invent system rarely benefits the inventor, whether a small business or an independent inventor. Interference proceedings to determine who invented first can be substantially costly.  The cost of proving who was the first to invent is prohibitive to the individual inventor in comparison to large companies with deep pockets and unlimited resources.  An argument in favor of the first-to-file system is that it will eliminate interference proceedings and provide certainty as to the patent’s date of invention, which will benefit all regardless of size.

However, first-to-file creates a race for inventors to be the first to file a patent application.  Large companies have in-house patent attorneys and strong research and development teams so that patent applications can be filed swiftly. On the other hand, small companies and individuals do not have the financial resources to file costly patent applications that turn out to be useless.  Furthermore, the Patent Office itself will receive an increase of applications of lesser quality as large companies speculate and rush to file patents on every new idea.  Small companies or individuals with limited funding would be placed at an extreme disadvantage in comparison to large companies in a first-to-file system, whereas in the first-to-invent system, what matters is the invention itself and reducing it to practice – filing can come after.

The first-to-file system proposed by the America Invents Act, beyond its facial unconstitutionality, would likely have an adverse impact on the U.S. patent system.  Filing patent applications will become a more risky investment and turn into a business of speculation at a level at which startups, the main source of innovations, will be unable to compete.  With a decrease in the commercialization of inventions, the America Invent Act will disrupt the U.S. patent system and hurt the U.S. as an industrial powerhouse in comparison to competing nations.


About the Author

Reena Jain

Reena is a Staffer for the Columbia Science and Technology Law Review. She is a 2L at Columbia Law School.
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