Federalism, Natural Law, and the First-to-Invent Rule: A Concise History

Abstract

Over the past decade, several proposals to harmonize United States patent law with the patent laws of the rest of the world have been successful. The resulting amendments have changed many substantive rules of patent law in the United States, including novelty and loss of rights provisions, confidentiality of pending applications, and term length. There is, nonetheless, one rule of patent law in the United States that has repeatedly withstood proposals for amendment, beginning at least in the 1960s and continuing through 2005 the first-to-invent rule of priority. The purpose of this paper is to map out the extraordinary history of how the United States came to adopt the first-to-invent rule, and to suggest an explanation for why we remain so strongly attached to it.