Intellectual Property in Common Law and Civil Law
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Intellectual Property in Common Law and Civil Law

Edited by Toshiko Takenaka

Drawing together the views and experiences of scholars and lawyers from the United States, Europe and Asia, this book examines how different characteristics embedded in national IP systems stem from differences in the fundamental legal principles of the two traditions. It questions whether these elements are destined to remain diverged, and tries to identify common ground that might facilitate a form of harmonization.
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Chapter 3: First-inventor-to-file under the America Invents Act: A view of first-to-file lawyer and a view of first-to-invent lawyer

Toshiko Takenaka and Martin J. Adelman


On September 16, 2011, President Obama signed the America Invents Act (‘AIA’) into law and ended the long patent law debate over the first-to-file v. first-to-invent priority. After the Philippines’ switch to the first-to-file in 1998, the U.S. has been the only country to follow the first-to-invent priority. The United States (U.S.) first-to-invent priority finds root in the Statute of Monopoly where any letters of patent were granted to the true and first inventor. Because these terms are copied in the first U.S. patent statute and some patent systems in common law countries which are based on the Statute of Monopoly, such as Canada and the Philippines, used to follow the first-to-invent priority, scholars in civil law countries may view the first-to-invent priority as a tradition in common law countries. On the other hand, some U.S. scholars view the first-to-invent as a tradition unique to the U.S. and fiercely protect the tradition, arguing that a patent grant to a first to-file who is not a first-to-invent is unconstitutional.

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