Seven scholarly law review articles have examined this issue and concluded that first-to-file is unconstitutional. No scholarly review proves otherwise.
Grass-rooters and tea partiers must not let Congress flout the Constitution by redefining the word "inventors" to be mean paper filers. The Constitution's framers and the early Congresses (which included many men who had been members of the Constitutional Convention) were very clear that first-to-invent is the meaning of the word "inventors."
First-to-invent is in conformity with tradition and history, as well as consistent with originalist, strict constructionist and textualist views of the Constitution. More than 200 years of statutes and jurisprudence confirm the first-to-invent standard.
The Patent Acts of 1790 and 1793 legislated that the patent must be awarded to "the first and true inventor." The Patent Act of 1836 used the language "original and true inventor" and "original and first inventor."
In Evans v. Jordan (1815), Chief Justice John Marshall wrote that the Constitution guarantees the "exclusive" right "to the inventor from the moment of invention." In Shaw v. Cooper (1833), the Supreme Court upheld the law that vested "the exclusive right in the inventor only."
Now, the liberals are circulating the un-American notion that we should utilize treaties and foreign laws to reinterpret our Constitution and statutes. They want Congress to use its treaty power or its Commerce Clause power to override the inventor's clause, overturn over 200 years of settled and successful law, and put us on the road to a borderless patent system.
First-to-file would elevate paperwork over true inventions, dilute the quality of patents because applications would be rushed to be filed, and cede sovereignty on the direction of our own patent system. First-to-file favors foreign inventors and big corporations that have the lawyers and resources to file quickly and redundantly, while taking rights away from independent inventors and small businesses.
No matter what arguments of policy or efficiency are made by first-to-file supporters, we cannot let them violate or ignore the Constitution. Tell your congressman to vote no on the patent bill.
Phyllis Schlafly is a national leader of the pro-family movement, a nationally syndicated columnist and author of Feminist Fantasies.
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