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November 11, 2005

First-to-File Unconstitutional

The Patent Reform Act of 2005 proposes provisions that would change the granting of patents from the so-called first-to-invent system to a first-to-file system. The first-to-file provisions of the Act violate Article I, Section 8, Clause 8 of the United States Constitution, which limits Congress to granting patents only to "Inventors". A system enacted by Congress for granting patents to anyone other than a good faith inventor would be unconstitutional.

The attached paper, posted here upon request by author Dr. David L. Simon, M.D., thought-provokingly covers an issue that is not likely to go away, even if the Patent Reform Act of 2005 fails passage. Essential reading on the topic.

Here is a link to the paper on the Social Science Research Network.

Posted by Patent Hawk at November 11, 2005 10:08 AM | The Patent System


Although the proposed U.S. system is called "first-to-file", the proposed system should be more accurately called "first-inventor-to-file". Under the proposal, you still have to have independtly invented the subject matter claimed. This is a difference that is not practiced in foreign countries where they do practice a literal "first-to-file" system whether the person invented the subject matter or not. In this case, this new system should not offend the constitutional provision that patents only be awarded to inventors.

Posted by: Josh at November 11, 2005 1:03 PM