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.

• Sprint is urging the FCC to quickly hold hearings to rule on whether the transfer of spectrum licenses from T-Mobile to AT&T serves the public interest. AT&T’s proposed $39 billion acquisition of T-Mobile is currently under review by the FCC after the US Justice Department sued to block the proposal.

• Senators Blumenthal (CT) and Franken (MN) introduced a bill on Tuesday that would prohibit wireless companies from having contract clauses that require consumers to use binding arbitration rather than suing in the case of a contract dispute.

• On Wednesday, members of the House reviewed the FTC’s recommendations to the Children’s Online Private Protection. The proposed changes would require greater permission from parents of children under the age of 13 before information could be collected from them on the Web.

• Also on Wednesday, Senator Coons (DE) and Kohl (WI) proposed amendments to the pending Currency Exchange Rate Oversight Reform Act of 2011. The amendments would allow private federal civil actions for trade secret infringement and would allow Customs & Border Patrol to share information on suspected counterfeiters with US rights holders.

• Samsung wants courts in France and Italy to prohibit Apple’s iPhone 4S, claiming that the iPhone infringed two of its patents. Samsung and Apple are currently in around 20 patent infringement legal disputes.

• AstraZeneca returned to court this week to defend its US patent on Crestor, a multibillion-dollar cholesterol drug, against generic drug makers who are appealing a decision from the US District Court in Delaware. In June 2010, the court ruled that generic firms failed to prove the patent was invalid because it was obvious.