Changing §101 won’t create certainty for investors - §102 and 103 are more important

Furthermore, it cannot be overlooked that §§ 102 and 103 present their own concerns for predictability to investors and researchers because invalidating prior art can be secret or difficult to find. Thus, even if a patentee puts forth substantial efforts to ensure their invention is patentable under §§ 102 and 103, it might very well be found to not satisfy one or both of those provisions in later litigation. As Professor Yelderman explained in his study, "somewhere between 18% and 35% of all obviousness invalidations relied on patents that were secret at the time of filing."278 Further taking into account prior art references that would be very difficult to find, "somewhere between a third and a half of obviousness invalidations [draw] on prior art not easily accessible to a person of skill in the art at the time of the invention."279 This is an important finding. Up to half the time a patent is invalidated under § 103, the basis for invalidity would not have been known to the patentee when applying for a patent. "An exhaustive search of all worldwide patents and traditional publications combined with perfect appreciation of those and other already cited references would preclude between 52% and 55% of all district court invalidations."280 Thus, even if § 101 was removed entirely, it can hardly be said that patentees or patent decision-makers should feel too confident that their patent is valid prior to being tested in litigation.