The Blog

Supreme Court Signals Pending Patent Reform Is Unconstitutional

Under a "first to file" system, individual and independent small inventors don't stand a chance of winning the race to the patent office against large corporations.
This post was published on the now-closed HuffPost Contributor platform. Contributors control their own work and posted freely to our site. If you need to flag this entry as abusive, send us an email.

It is critical for America's success that we have a properly functioning patent system. This was well recognized by our founders, who expressly granted Congress the power to issue patents in the Constitution. If you haven't seen it lately, the Constitution grants Congress the power:

"To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

By the way, the power to issue patents is higher on the list than the power to declare war. That's how important it was to our Founders.

Note the language in the Constitution "to Inventors." This means that Congress may only grant patents to the actual inventors, not to anyone else. To grant patents to people who aren't "inventors" is outside the powers granted to Congress by the Constitution and any attempt by Congress to grant patents to people who aren't "inventors" is not allowed.

The United States is very unique in this respect, as most of the world grants patents to whomever files an application for a patent on the invention first. This means that if you come up with a new invention before me, so long as I get my application into the patent office before you, I get the patent and you're completely out of luck. Such a "first to file" system benefits large corporations who have multiple patent attorneys on staff ready to file patent applications all the time, as it's really hard for small inventors to scrape together the money necessary to hire an attorney to draft an application for them and then pay all of the patent office application fees.

Thus, it's undeniable that under a "first to file" system, individual and independent small inventors don't stand a chance of winning the race to the patent office against large corporations. The only way to protect independent and small inventors who come up with great ideas is to maintain the "first to invent, even if later to file" system we currently have. This is why the Constitution is written the way it is, to ensure patents are granted to "inventors" and no one else. Yes, we're different than the rest of the world, but us Americans have always been independent thinkers. That's what makes us the greatest country on Earth.

Congress is, unfortunately, on the verge of passing the so-called "America Invents Act" (S. 23 and H.R. 1249) that would change our patent system from the "first to invent" system we've had since our founding, to a "first to file" system. This is not only harmful to small entrepreneurs, but it also violates the plain language of the Constitution, which requires patents be granted to "inventors", not "filers." To be sure, the Supreme Court just this week reminded us that the Constitution guarantees patent rights shall vest in inventors, not their employers. In a case involving Stanford University, Chief Justice John Roberts wrote in the very first sentence of his opinion for the Court, "Since 1790, the patent law has operated on the premise that rights in an invention belong to the inventor." The Chief Justice continued to write, "Although much in intellectual property law has changed in the 220 years since the first Patent Act, the basic idea that inventors have the right to patent their inventions has not. ... Our precedents confirm the general rule that rights in an invention belong to the inventor." Thus, the Supreme Court unquestionably believes that the American patent system is based on awarding patents to inventors. Scholars also agree that changing from the "first to invent gets the patent" system that we have today to a "first to file an application gets the patent" system being considered by Congress would violate the Constitution.

So one is left to ask, why is Congress about to pass a law that would benefit large corporations, harm small entrepreneurs and violate the Constitution? I don't know, but maybe if you call your representative (212-224-3121) they can explain it to you.