From Dissertation to Litigation: The First-to-Invent System Versus the First-to-File System: A Comparative Analysis in Light of the Legal Dispute Over the CRISPR CAS9

Abstract

With the recent implementation of the Leahy-Smith Act (America Invents Act), the landscape of the United States patent system has undergone a massive transformation. This reform aimed to substantially harmonize in an international level certain aspects of patent law. The purpose of this paper is to elucidate the differences between the first-to-invent system and the first to file system concerning the creation of priority rights in patents. The paper will also deal with the interpretation of 35 U.S.C. §102, §103 and §112 and the applicable legal standard for evaluating patentability. The same analysis, on the legal standards applied to patentability, is also considered in light of the European Patent Convention. The approach taken for this investigation is a practical one. This paper analyses a case currently ongoing in two major jurisdictions, U.S. and Europe. Centering on a new and revolutionary technology named CRISPR Cas9. CRISPR Cas9 is a method for gene editing created a few years ago by studying bacterial immune response. This method has had a significant impact in biomedicine and is considered as the next generation of genetics.