The First-to-File Provisions of the Patent Reform Act of 2005 Violate the Constitution's Intellectual Property Clause

31 Pages Posted: 10 Nov 2005

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Dave Simon

affiliation not provided to SSRN

Date Written: November 2005

Abstract

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 Intellectual Property Clause limits Congress to granting patents only to "Inventors." A system enacted by Congress for granting patents to anyone other than a good-faith inventor operates outside of the constraints enumerated in the Clause, and therefore is facially impermissible. The first-to-file provisions of the Act are violative of Article I, Section 8, Clause 8 of the United States Constitution.

Keywords: first-to-file, first-to-invent, Patent Reform Act, patent clause, intellectual property clause, H.R. 2795, Rep. Lamar Smith. Article I, Section 8, clause 8, Patent Remedy Act, harmonizing U.S. patent, interference proceeding, patent history, H.R. 41, patent act,

Suggested Citation

Simon, David L., The First-to-File Provisions of the Patent Reform Act of 2005 Violate the Constitution's Intellectual Property Clause (November 2005). Available at SSRN: https://ssrn.com/abstract=841404 or http://dx.doi.org/10.2139/ssrn.841404

David L. Simon (Contact Author)

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