* Editor’s Note: The following conversation on patent reform and the Copyright and Patent Clause of the U.S. Constitution originally took place in an e-mail exchange among Prof. Richard Epstein of New York University School of Law, Prof. Adam Mossoff of George Mason University School of Law, and other scholars and practitioners over the course of nearly two weeks. We gained permission from the authors to post their e-mails with some minor changes, and we are pleased to present to you their comments here, exclusively on FedSoc Blog.
Dan Ravicher and I have drafted a letter to Representatives Lamar Smith and John Conyers on why Section 2 of H.R. 1249 -- the first-to-file provision entitled "first-inventor-to-file" -- is unconstitutional.
We figure that since Dan and I are on the same side that this would be sufficient grounds by itself to join the letter! More seriously, we argue that Section 2 violates the plain terms of the Copyright and Patent Clause, as well as 220 years of congressional and judicial interpretations of this constitutional provision. There's an interesting parallel in this argument to the claim in the Eldred case that the terms in the Copyright and Patent Clause impose limits on Congress's power to adopt patent and copyright laws; in this case, it's the terms "Inventors" and "Discoveries." At a minimum, there is a colorable argument supporting the 64 House Members who have formally requested a debate on the constitutional merits of Section 2.
UPDATE: Click here to view the letter Prof. Mossoff, Daniel Ravicher, and other professors sent to Speaker John Boehner and House Minority Leader Nancy Pelosi on June 17.