Working Paper No. 12-83:
First-to-File as a Rule of Evidence
Date Posted: December 2012
Abstract (below) | Full text (most recent) on SSRN
Some have argued that the new first-to-file patent system is unconstitutional because the Constitution contains a principle that patents should be granted only to first inventors. In this Essay, I argue that, even accepting such a constitutional principle, a first-to-file system is permissible because it relies on a reasonable evidentiary proxy for determining the first inventor.