The USA's change to first-inventor-to-file (FITF)

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The USA's change to first-inventor-to-file (FITF)

With the America Invents Act of 2011, which was signed by President Obama on September 16, 2011. The law will switch U.S. right to the patent from the present "first-to-invent" system to a "first-inventor-to-file" system for patent applications filed on or after March 16, 2013. Many legal scholars.^] have commented that such a change would require a constitutional amendment. Article I, Section 8, Clause 8 of the US Constitution gives Congress the power to “promote the Progress of ... useful Arts, by securing for limited Times to ... Inventors the exclusive Right to their respective ... Discoveries.” These scholars argue that this clause specifically prohibits a first-inventor-to-file system because the term "inventor" refers to a person who has created something that has not existed before.

Under the first-to-invent system, when two people claim the same invention, the USPTO would institute an interference proceeding between them to review evidence of conception, reduction to practice and diligence. Proponents argue that the FITF aligns the U.S. with the rest of the world, according to the original U.S. patent system, and brings more certainty, simplicity and economy to the patent process, all of which allow greater patent participation by startups.