The Leahy-Smith America Invent Act: Possible Constitutional Friction

November 3, 2011 | | Comments Off on The Leahy-Smith America Invent Act: Possible Constitutional Friction

By Tony Guo

Intellectual property affects our daily lives: literature, music, technology, and even what we eat depend on inventor’s rights.  What is less well known is that the government’s power to grant intellectual property rights stems directly from the Constitution.   The Copyrights and Patents clause is found in the U.S. Constitution Article I.   Further, Article I describes the scope of the government’s power, what inventions are patentable, how patents are issued, the nature and scope of the rights granted by Congress, the  power Congress has over patent rights, how state power affects patents and copyrights and the application of trademarks.  The importance of protecting inventors was not lost on the founding fathers.  Inventors were rewarded with a pseudo-monopoly on the invention in exchange for their initial investment and disclosure of how the invention worked.  The patent system has undergone several changes since its incorporation.  The biggest change is on the horizon, The Leahy-Smith America Invents Act.

The Leahy-Smith American Invents Act changes the U.S. from a first inventor to invent system to a first inventor to file system.   The rationale behind this change is that the patent system will become more transparent about its standards and more objective in determining what is patentable.  It is also believed that a first inventor to file system is more predictable and simpler to use.  Its constitutional affect may be very large.  A patent grants the right to the owner to exclude others from using an invention.  In a world where innovation is essential for growth a first inventor to file system may hinder personal freedom not only to invent but also to use.

There is an 18 month transition period to the first to file system.  This means the first inventor file system begins March 16, 2013.  Patent applications are subject to the first inventor to file system if an application at any time contains a claim with an effective filing date on or after March 16, 2013 or contains a claim for benefit of any application that at any time contained such a claim.

Next, move why not look there up to regional publications, which tend to pay a bit better and have a larger readership?


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