The new intellectual property race. Run, walk, or sit it out? Entrepreneur perceptions of the America Invents Act

Published date09 July 2018
Date09 July 2018
AuthorCraig Silvernagel,George Langelett,Brian Tande
Subject MatterStrategy,Entrepreneurship,Business climate/policy
The new intellectual
property race
Run, walk, or sit it out? Entrepreneur
perceptions of the America Invents Act
Craig Silvernagel and George Langelett
South Dakota State University, Brookings, South Dakota, USA, and
Brian Tande
Kansas State University, Kansas, Manhattan, USA
Purpose The purpose of this paper is to investigate how entrepreneurs are reacting to the recent change in
patent priority rules under the America Invents Act (AIA). The authors sought to examine the relationship
between a significant change in policy concerning a class of intellectual property (IP), patents in thiscase, and
resulting perceptions and attitudes among entrepreneurs.
Design/methodology/approach The authors designed a survey and collected data from 36 practicing
entrepreneurs in the upper Midwest. The survey respondents completed either a paper hard-copy survey that
was available at a regional entrepreneurship and innovation conference, or an electronic version of the survey
(administered through The survey included questions about entrepreneurship experience,
area of expertise, IP use history and knowledge, risk tolerance, and demographics.
Findings The empirical findings suggest that entrepreneur practitioners have not thoroughly reviewed FTF,
but they are seeking legal advice. Also, entrepreneurs disagree with the notion that they are more likely to innovate
under FTF. With regard to entrepreneurial knowledge, speaking with an attorney had a significant impact on
entrepreneursattitudes toward FTF, leading them to worry more about how they might compete with larger firms
and about sharing their ideas. Finally, after controlling for demographics, the authors find that attitudes toward
FTF have already significantly impacted recent past and future intended entrepreneurial behavior.
Originality/value While the literature is rich with information about the AIA, the history of IP and
patenting in the USA, and the merits and challenges of first-to-file vs first-to-invent patenting policy, little has
been done to study entrepreneur attitudes and perceptions regarding the implementation of AIA and its
policy provisions. Understanding entrepreneur perspectives concerning AIA is a critical component in
assessing impacts regarding the critical area of innovation and new venture creation.
Keywords Innovation, Entrepreneurship, Intellectual property, Patenting, Invention, AmericaInvents Act,
First to file, First to invent,Intellectual property policy, UnitedStates Patent and Trademark Office (USPTO)
Paper type Research paper
In a rapidly evolving market-based society, innovation and entrepreneurship are the
lifeblood of the economy. Economists since Adam Smith (1776) have acknowledged the
important role the entrepreneur plays in society. Through innovation and entrepreneurship,
new ideas, products, and solutions to problems make their way to the market and into the
lives of consumers. In the USA, the ability to secure government-issued protection for novel
creations has been in place since the earliest years of the nations founding. In 1790, the USA
Congress passed the first patent act (Library of Congress). While subsequent acts provided
for modification to some provision in US patent law, the priority rules for claiming
ownership of an invention had changed little over the past 225 years (Library of Congress).
Then, on March 16, 2013, as part of the 2011 America Invents Act (AIA), a significant shift
in the patent laws of the USAwent into effect (Ashworth, 2013, p 0.384). As a result of the
passage and implementation of AIA, for the first time in the nations history, patent
ownership priority would be determined using a first-to-file procedure; a significant change
from the long-standing first-to-invent (FTI) philosophy (US P and TM Office, 2011).
Journal of Entrepreneurship and
Public Policy
Vol. 7 No. 2, 2018
pp. 106-116
© Emerald PublishingLimited
DOI 10.1108/JEPP-D-17-00032
Received 7 December 2017
Revised 28 February 2018
Accepted 5 March 2018
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