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Washington Journal of Law, Technology & Arts

Abstract

In 2011, the Leahy–Smith America Invents Act (AIA) was signed into law, bringing significant changes to the Patent Act of 1952. Arguably, the most substantial change was the demise of the “American approach” to patent law: the “first-to-invent” patent filing system. Congress, by enacting the AIA, changed America's patent system from “first-to-invent” to “first-inventor-to-file,” sparking controversy among patent scholars and practitioners, with some individuals arguing that this change was unconstitutional. Recently, the Federal Circuit faced an issue of first impression when an inventor challenged the constitutionality of the first-inventor-to-file provisions of the AIA, and by extension the AIA as a whole, under Article I, Section 8, Clause 8 of the United States Constitution in the case of MadStad Engineering, Inc. v. USPTO. While ruling against MadStad based on standing, and not on the constitutionality issue, the court gave some insight for a challenger to establish standing by showing a substantial risk of injury actually arising from the first-inventor-to-file provision of the AIA. From the MadStad ruling, it is clear that the arguments of the constitutionality of the AIA’s first-inventor-to-file provisions are far from settled.

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