A2 Trade secrets solvency deficit

VII. THIS PATENT INELIGIBILITY WILL NOT CAUSE DISCLOSURE PROBLEMS

Whenever an inventor believes that patent protection will not best protect their interests, then there is always the option to keep the details the invention a trade secret.119 This option however can inhibit the progress of future inventors, because the innovative concepts are not disclosed to the public. So, by making various forms of innovation patent ineligible it begs the question of whether this patent ineligibility may inhibit future progress through the use of trade secrets in science. Incentivizing scientific progress is one of the main objectives of the patent system.120 So, if this decision would cause those in the field to hide the details of their innovations with trade secrets, this would achieve the exact opposite result the court intends.

Fortunately, the courts do not have to worry about this potential consequence. The White House Office of Science and Technology Policy recently established new policy guidance that effectively solves this problem.121 This new policy guidance says that all taxpayer funded scientific research will have to be immediately available to the public at no cost.122 This policy is praised by the scientific leaders who believe this will spur even further innovation.123

Because of this new policy, the vast amount of fundamental scientific research that is funded federally will be available to the public without the worry of trade secrets or incentivizing disclosure through the patent system. This new policy solves the potential problems that may have resulted from limiting patent protection on fundamental diagnostic research.

VIII. CONCLUSION

The work done to produce the patents assigned to CareDx were great achievements that will inevitably save lives. But the court was correct in invalidating the patents for ineligibility. The court properly used the Alice test to determine that this was directed to an ineligible concept and solely used conventional methodology. The federally funded research was not motivated by the patent system and there is no danger of non-disclosure because of the new policy guidance. The potential hinderance on future scientific research was solved with a balance of patent ineligibility and new disclosure policy for federally funded research.