On March 4, leaders of the Senate Judiciary Committee announced that they’d reached agreement on a modified version of a patent reform bill (S. 515) introduced into Congress last year. If enacted, the modified bill is sure to disrupt our nation’s established patent policy and decrease our nation’s competitive edge in technology-related matters.
A first provision purports to change our system from “first to invent” to “first to file.” Unfortunately, this change does not comport with more than a century of judicial construction of Article 1, § 8, clause 8 of the Constitution. Nor does it comport with patent statutes dating as far back as the Patent Act of 1836. That act required an oath or affirmation that the patent applicant “does verily believe that he [or she] is the original and first inventor or discoverer” of the invention. An “inventor” is the first person who makes the invention, not the second-comer, unless the first party has “abandoned, concealed or suppressed” it.
