Under the America Invents Act, we now have a similar 19th Century style legal regime in which the fleet-footed, not necessarily the fleet-minded, are granted the legal rewards of exclusive ownership.
If you're a small business owner and an entrepreneur, then beware of the new patent law. President Obama recently signed the America Invents Act into law and, with the stroke of a pen, the most major changes to it in some 60 years. You may not have heard much in the media about this new law (surprise), because both parties agreed to it. While the devil is in the details, and many of the details remain to be seen, many regard the law as less than favorable to entrepreneurs.
The biggest change? The move from a first-to-invent system (i.e., where the patent rights go to whoever can prove they created the idea/product first) to a first-to-file system. Soon, the patent will go to the party who gets the idea to the patent office first and, in a digital age, that is a race where every second counts.
As a recent Forbes article points out, this is a significantly greater challenge to the entrepreneur (especially the technology entrepreneur). Why? Because it makes "idea theft" more likely. In turn, it forces innovators to be more closed about their ideas (out of fear). Prior to the new law, getting an idea right and getting it out there in the marketplace has been a social process involving more open communication. For one, think of how dangerous a trade show might be for an entrepreneur. Similar systems have been in place in Canada and Europe for years, and there's evidence that it hasn't been good to small business.
What to do? According to another recent article, this one from Smart Business, it's important to remember that you are in a race. Indeed, it's much like land grabs of the early 19th century (think Oklahoma Sooners) and that's probably one comparison to a "pioneer" that an entrepreneur might like to avoid (especially if one is an Oklahoma State Cowboy fan). It will be important to reassess how you deal with your ideas, whether you are an individual or you have employees working toward developing their own ideas. You no longer have the luxury of sitting on a good idea.
The lifeblood of small business is often innovation, and so now the security of your business might lie in speed. More information about the law and specific problems can be found in each of those articles, as well as in other sources. According to the America Invents Act, the race is on as of January 1, 2012.
Gentlemen (and gentlewomen)... start your entrepreneurial engines.
Forbes (September 20, 2011) "New Patent Law Means Trouble for Tech Entrepreneurs"
Smart Business (September 20, 2011) "The America Invents Act: A race to the patent office"