Changing Patent Protections

U.S. and foreign patent systems have suffered legislative and judicial reverses as
to subject matter eligibility for patenting, a rising bar of obviousness due to increasing skill of the art, insights aided by artificial intelligence (AI) tools, procedural artifacts for no-risk post grant invalidation by granting agencies, and awakening of once dormant antitrust and public policy limits. Although patents must be pursued when copying is inevitable, trade secrets can provide an important strategic complement when trying to protect intellectual property rights.

Growth of Trade Secrets

Trade secret law has continued to evolve over the decades. All states – except, notably, New York – have adopted laws modeled on the Uniform Trade Secrets Act (UTSA) which codify basic trade secret law principles, preserve differences from patent law, and standardize certain key definitions. In 2016, Congress passed the federal Defend Trade Secrets Act (DTSA) which created a federal private right of action for trade secret misappropriation under the Economic Espionage Act.

This article was published by the AIPLA’s Biotech Buzz Trade Secret Subcommittee. To read the full article, click here.