With Patent Enforcement Persistently Uncertain, High-Tech Startups Should Rediscover Trade Secrets

The United States Congress, the US Patent and Trademark Office, the federal courts, and patent seekers have been locked in seemingly irreconcilable conflicts over patent standards and policy for almost 75 years. In the immediate postwar era, Congress became concerned that federal courts were needlessly invalidating patents by failing to find a "point of novelty" reflected in the claims, even when a complete claimed combination represented something new. In response, in the 1952 Patent Act, Congress legislatively overruled the "point of novelty," substituting "nonobviousness" as a more fulsome, comprehensive test of innovation. The federal Circuit Courts of Appeals continued to apply conflicting validity standards, and that, coupled with the perception that America had lost competitiveness relative to Japan, led Congress in 1982 to create the Court of Appeals for the Federal Circuit with the goal of consistent judicial decision-making and stronger patents.