Without Grace: How the America Invents Acts Hurts American Inventors and Weakens Incentives to Innovate

Jennifer L. Case


Years of effort and lobbying by coalitions of large corporations to reform U.S. patent law culminated in the enactment of the Leahy-Smith America Invents Act (AIA). Among other things, the AIA converts the United States’ current first-to-invent (FTI) system into a first-to-file (FTF) paradigm. The AIA awards a patent—and all of its commercial protection—to the first person to apply for a patent. The AIA also redefines the terms of the patent system’s grace period. Under the AIA, inventors must choose between filing for a patent before their idea is perfected and hoping that no one discloses their idea while they continue to develop their product.

This Article outlines the fundamental ways that the AIA changes how U.S. patent law protects inventors’ rights. Specifically, this Article focuses on how the new FTF system and its weakened grace period will undermine new product development and hurt inventors. It emphases how the re-designed patent system will negatively impact individual inventors, startups, and small businesses.