infoJustice

Author: Michael Risch

Abstract: Beginning in 2010, the U.S. Supreme Court limited the type of inventions that were patentable. In the aftermath of these limits, patent plaintiffs began to lose cases—especially software patent cases—in a way they had not before. Commentators predicted that, faced with waning patent protection, inventors would look to trade secrecy to protect their creations.

This chapter is the first to empirically test this prediction. Using a novel dataset and exploiting the differing impact of rule changes on different types of patents, the chapter performs a differences-in-differences-in-differences analysis on trade secret claims before and after Court rulings. The analysis confirms a likely shift to trade secrecy among product and service companies who hold software patents. These companies—those most affected by the law—were 50% more likely to include a trade secret claim in their patent cases after the patent law changed. All the other plaintiffs saw no increase in trade secret claims. The chapter discusses the robustness of this finding, as well as questions that it cannot answer.

Citation: Risch, Michael, From Patents to Secrets (September 29, 2022). RESEARCH HANDBOOK ON EMPIRICAL STUDIES IN INTELLECTUAL PROPERTY LAW (Edward Elgar Publishing, Estelle Derclaye ed. Forthcoming 2022), Available at SSRN: https://ssrn.com/abstract=4232645