First-to-file and first-to-invent priority: an American historical perspective

Since the time the USA was first formed, our founding fathers recognized that rewarding inventors with a limited monopoly on their invention in exchange for public disclosure was an important part of the American nation's fabric. Indeed, the US Constitution included this power in Article I(8)(8), in the patents and copyright clause, and in 1790, one of our nation's first laws was the original Patent Act (see 1 Stat 109 (1990)). However, our founding fathers were also sceptical of granting just anyone a monopoly, based on misuse of this power by the Crown in England in earlier times. So the concept was that only ‘Inventors’, understood under Anglo-American principles dating to the Cases of Monopolies, Darcey v Allein, 77 Eng Rep 1260 (KB 1602) and the Statutes of Monopolies, 21 Jac I, Ch 3 (1624), to mean ‘first and true’ inventors, should be entitled to a patent award. From that time on, it has been a fundamental premise of the American patent system that only ‘first and true’ inventors are entitled to a patent.