State of Innovation

Patents and Innovation Economics

S.23 Patent Bill Unconstitutional

Article I, Section 8, Clause 8 of the United States Constitution states:

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.

An inventor is a person who creates something new.  With the Feinstein amendment voted down, S.23 now called “Invent America Act” changes the U.S. to a “First to File” country.  This violates the Constitutional mandate.  By changing our patent laws to a first to file rule, Congress is not securing the exclusive rights of inventors.  It is taking rights from inventors and giving them the person who games the legal system most effectively – files first.

Congress cannot just ignore the definition of inventor.  This is not Alice in Wonderland.  The inventor is the person who first creates something.  S.23, the “Invent America Act” is unconstitutional.



March 3, 2011 - Posted by | Patents


  1. Dale,

    We disagree (respectfully) on definition of what is an “inventor”.

    However, yours is a good idea to look at the Constitution (and also see the Preamble thereto” To Promote the general welfare for ourselves and our posterity).

    I would urge you to focus on the part of Art. I clause 8 that says: “To promote the Progress of Science and useful Arts, by securing …”

    How does 1st to file give inventors “security”?

    It doesn’t.
    It gives them the scares and the runs.

    How does 1st to file give the public promotion of science?

    It doesn’t.
    It forces inventors to stop diligent perfection of their ideas and to instead spend resources in the race to be first at the Patent Office steps.

    Comment by step back | March 6, 2011 | Reply

    • Step back,

      I agree that it does not promote the useful arts and sciences. However, the preamble is not limiting, just like it is not limiting in patent law (generally). The clause states the “rights” of inventors. Rights have to be understood in terms of Locke’s natural rights because that is the context of the founders. This means that inventors have rights in their inventions because they are the creator’s of their inventions. This also means that the word “Shall” is not an option, it is just placing the responsibility with Congress instead of the executive branch or the judicial branch.

      If you look up the definition of an inventor, the answer that is consistent with patents is: inventor – someone who is the first to think of or make something. Note it says first. If it did not say first why would we have a novelty requirement?

      Comment by dbhalling | March 6, 2011 | Reply

  2. Here are links to two recent law review articles that conclude that First To File patent “reform” is unconstitutional:

    That being said, Congress passes unconstitutional laws all the time. The real outcome of this patent “reform” (I call it “deform”) will hinge on political pressure. If you care to preserve the First To Invent system and the small businesses, jobs and economic growth that come with it, it’s time to get the lead out.

    Comment by defendmyrights | March 30, 2011 | Reply

  3. Thanks.

    Unfortunately, you are correct that Congress just ignores the Constitution.

    Comment by dbhalling | March 31, 2011 | Reply

  4. Of course S.23 is Unconstitutional.
    Ask any one of my fellow innovators.
    Specifically Indie’s.

    Simple, S.23 is in the interest of large corporations.
    You know the ones that have always been independent innovator unfriendly.

    Comment by Roy | June 6, 2011 | Reply

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