Home » Articles » Harmonization Through Condemnation: Is New London the Key to World Patent Harmony?

Harmonization Through Condemnation: Is New London the Key to World Patent Harmony?

PDF · Max Stul Oppenheimer · Aug-16-2012 · 40 VAND. J. TRANSNAT'L L. 445 (2007)

Since 1790, when two U.S. patent applicants have claimed the same invention, the patent has been awarded to the first inventor. Today, the United States stands alone in the industrialized world, and many argue that the United States should, in the interest of world patent harmony, change its system so as to award a contested patent to the first applicant.  Of the arguments advanced to justify the change, the only ones that withstand scrutiny are that “all the other countries are doing it” and the hope that some concessions in other aspects of intellectual property or trade might be obtained in exchange. There are compelling reasons to resist the change, principally that (unless other fundamental aspects of U.S. patent law are changed as well) U.S. inventors will be disadvantaged.

Even if the arguments favoring the change are found to outweigh the arguments favoring the status quo, the power to grant U.S. patents derives from Article I, Section 8, Clause 8 (the Intellectual Property Clause) of the Constitution, which authorizes granting exclusive rights to authors and inventors. Other countries are not so constrained.  An historical analysis of the Intellectual Property Clause and review of the types of evidence used by the Supreme Court in constitutional analysis lead to the conclusion that the Intellectual Property Clause does not permit granting patents to the first applicant in preference to the first inventor.

Alternate sources of Congressional power have been suggested (principally the Commerce Clause and the Treaty Power), but the Supreme Court has never found either sufficient to overcome a specific constitutional limitation of power. The only power which seems sufficient to accomplish the objective of harmonization within constitutional limits is eminent domain.




Leave a Reply

ExpressO Top 10 Law Review

ANNOUNCEMENTS

The Vanderbilt Journal of Transnational Law has confirmed the schedule and panelists for its 2015 Symposium, This is Not a Drill: Confronting Legal Issues in the Wake of International Disasters.

Read the Journal’s latest issue (Vol. 47 No. 5) here.

The Vanderbilt Journal of Transnational Law mourns the death of its founder, Professor Harold G. Maier.

We are pleased to announce the 2014-2015 Board of Editors and 2014-2015 Editorial Staff Members.

Please join us in congratulating the Vanderbilt Journal of Transnational Law 2013-2014 Annual Award Winners.

Coming up:

The Vanderbilt Journal of Transnational Law invites you to its 2015 Symposium, This is Not a Drill: Confronting Legal Issues in the Wake of International Disasters.

Recent and dire international disasters, both environmental and humanitarian, have left legacies not only of destruction and destitution, but also of an uncertain legal landscape. The Symposium will address current and pressing international-disaster-response topics. These will include environmental effects, disaster assistance, humanitarian assistance, and criminal processes and sanctions in the wake of various types of international disasters. Symposium participants will include leading scholars from across the country.

The 2015 Symposium will take place on Friday, February 13, 2015 at Vanderbilt Law School, 131 21st Avenue South, Nashville, TN 37203. A detailed schedule will be available soon.

For information on the 2015 Symposium, as well as past symposia hosted by the Journal, please visit the Symposium page.

Explore Other Vanderbilt Law Resources