D.Applicable Law

In broad sense,the term“patent law”covers a wide spectrum from statutory law to case laws,and unlike most other countries in the world,the statutory law,though the primary source of patent law and enacted by Congress,only provides broad principles,and these principles are usually fleshed out by the case law – the judicial opinions rendered in every specific controversies from the parties having adversarial interests.Sometimes,the judicial opinions even give guidance to legislative action.[1]

The very foundation of the U.S.patent law is the constitutional provision that authorizes the patent system.Article I,Section 8,Clause 8 of the Constitution provides:

The Congress shall have Power …

To promote the Progress of Science[2] and useful Arts,by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;[3]

The constitutional provision is by all means the“supreme law of the land,”which cannot be changed or altered by ordinary means,and since its ratification in 1787,has not been changed.With the recent change from“first-to-invent”to“first-inventor-to-file”under the America Invents Act (AIA),some people suggest that the constitutional provision may need to be amended.The constitutional amendment requires approval by 3/4 of the state legislatures.So far,there is no such move in sight.

The primary source of U.S.patent law is the patent statute found in Title 35 of the United States Codes (“35 U.S.C.§§ 1,et seq.”),or commonly referred to as the“Patent Act.”

The first patent act of 1790 was authored by Thomas Jefferson,a founding father of the United States,who was also one of the first Commissioners of Patent.The patent law went through several revisions,in 1836,1870,and 1952,the last one being the current law,with various amendments from time to time,and a latest major revision of the“America Invents Act”of 2011.

The patent act,or any amendment thereto,could be adopted with relative ease: when Congress passes a bill,and the president signs it,it will become the law,which happens all the time.

A more specific set of regulatory rules is promulgated by the federal government under Title 37 of the Code of Federal Regulations (“37 C.F.R.”),which can be modified by the federal government from time to time.