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Inventor vs. Filer: Congress considering historical change to inventor's rights

Who should have rights to an invention, the person who invented it first or, the first person to file for a patent? For years the United States has been one of a few countries to run under a system of first to invent. The first to invent system states that when an inventor conceives of an idea, then diligently reduces that invention to practice, the inventor has the right to the patent. If someone tries to patent the same invention before the inventor, the inventor can begin interference proceedings to prove he was the first to invent, therefore gaining sole right to the patent. This system requires inventors to keep diligent records and generally file a patent within one year of disclosure.

The first to invent system, however, is being considered for replacement with the first to file system in the Patent Reform Act of 2009 currently before Congress. The first to file system operates by stating that whoever is first to file the patent is the one who receives the patent.

Many independent inventors argue against the first to file system because they believe it gives an unfair advantage to large corporations who can afford the expensive filing fees. They also argue first to file goes against our constitution; Article 1 of section 8 of the United States Constitution states, "The congress shall have the power…To promote the progress of science and the useful arts, by securing for limited time for authors and inventors the exclusive right to their writings and discoveries."

In order to determine constitutionality one must first define inventor, currently in the USPTO Manual of Patent Examination Procedure, it states, "The threshold question in determining inventorship is who conceived the invention. Unless a person contributes to the conception of the invention, he is not an inventor. . Insofar as defining an inventor is concerned, reduction to practice, per se, is irrelevant...One must contribute to the conception to be an inventor." In contrast, under a new first to file system the first person to file for a patent does not have to be the person who conceived of the idea and since the filer did not conceive of the idea the filer is not the inventor. Therefore one can argue the filer is not protected by the constitution.

Many others, however, argue in favor of the first to file system, saying it will align us with the rest of the world. They also argue it will get rid of costly, time consuming interference trials causing the patent process to become easier and more efficient. There are strong arguments on both sides of the line and everyone will be watching Congress to see which way it votes.

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