# What are current setbacks in patent law?

legalpdf.io · November 12, 2026

> PTAB Bias and Patent Revocation Risks The Patent Trial and Appeal Board continues to face significant criticism for its perceived bias against patent...

## PTAB Bias and Patent Revocation Risks

The Patent Trial and Appeal Board continues to face significant criticism for its perceived bias against patent holders, a dynamic that has fundamentally altered the landscape of patent enforcement. Recent data indicates that the Board maintains an unusually high rate of claim cancellation, prompting industry leaders to label it a "patent death squad." This trend creates substantial uncertainty for innovators who previously relied on robust patent protections to secure investment and drive research. The consistent invalidation of patents through inter partes review proceedings suggests a systemic imbalance, where the burden of proof is often shifted in ways that disadvantage the patent owner. Consequently, many corporations are reconsidering their intellectual property strategies, fearing that valuable inventions may be stripped away before they can generate meaningful returns. This environment undermines the predictability that patent law is designed to provide, forcing companies to navigate a more perilous regulatory terrain.

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To mitigate these risks, some firms are shifting toward trade secret protection, particularly for generative AI inventions where patent disclosure requirements are stringent. This strategic pivot reflects a growing skepticism about the durability of patent rights in the face of aggressive administrative challenges. Meanwhile, legislative efforts to address patent eligibility problems aim to restore clarity, yet the current framework remains fraught with ambiguity. The combination of high revocation rates and evolving legal standards creates a complex environment for inventors. Stakeholders must carefully weigh the benefits of public disclosure against the risks of invalidation. As the legal landscape shifts, the focus on protecting innovations through alternative means becomes increasingly critical for sustaining economic growth and technological advancement in an era of heightened scrutiny.

## Software Eligibility And Alice Ambiguity

The persistent ambiguity surrounding software patent eligibility under the Alice framework continues to create significant uncertainty for innovators in the technology sector. Despite recent efforts by the USPTO to clarify these standards, courts remain divided on what constitutes patent-eligible subject matter, leading to unpredictable outcomes in litigation. This legal instability discourages investment in software development, as companies struggle to navigate the complex landscape of abstract ideas versus specific technical improvements. The lack of clear guidelines forces firms to spend considerable resources on defensive strategies rather than focusing on genuine innovation, slowing down the pace of technological advancement across various digital industries.

Meanwhile, the Patent Trial and Appeal Board’s reputation as a hostile venue for patent holders further complicates matters for applicants seeking to protect their inventions. With high invalidation rates, many businesses are shifting toward trade secret protection, particularly for generative AI inventions, to avoid the uncertainties of public disclosure and potential challenges. This shift highlights a growing gap between traditional patent law and modern technological realities, where rapid innovation cycles demand faster and more flexible forms of intellectual property protection. As the legal system grapples with these changes, stakeholders must adapt to a landscape where patent rights are increasingly precarious, urging a reevaluation of how intellectual property laws can better serve the needs of today’s fast-evolving digital economy.

## Trade Secret Shifts For AI Tech

The landscape of intellectual property protection is undergoing a significant transformation as artificial intelligence technologies advance at an unprecedented pace. Companies are increasingly turning away from traditional patent systems, which have become notoriously unpredictable and burdensome for software and algorithmic innovations. Instead, firms are adopting trade secret strategies to safeguard their proprietary algorithms and data models. This shift reflects a growing frustration with the patent examination process, particularly regarding subject matter eligibility and the abstract idea exception. Legal experts note that the uncertainty surrounding patent eligibility has made it difficult for AI developers to secure robust protection, prompting a strategic pivot toward confidentiality agreements and internal security measures rather than public disclosure through patents.

This transition poses unique challenges for the legal community, especially in the realm of eDiscovery and legal research. As companies rely more heavily on trade secrets, the ability to uncover and analyze confidential information during litigation becomes paramount. Legal professionals must now navigate complex questions regarding the discoverability of trade secrets and the boundaries of protective orders. The rise of AI-driven document review tools is essential in this new environment, allowing lawyers to efficiently identify relevant confidential materials without compromising the very secrets they seek to protect. Consequently, the intersection of AI technology and intellectual property law is reshaping how firms approach both innovation and litigation, emphasizing the need for sophisticated legal strategies that balance protection with transparency in the digital age.

## Biosimilar Patent Thicket Litigation

The persistent challenge of patent thickets in biosimilar litigation creates significant barriers to market entry, forcing companies to navigate a labyrinth of overlapping intellectual property claims. Recent setbacks in patent law highlight how these dense webs of patents hinder competition and delay patient access to affordable treatments. Courts and administrative bodies often struggle to untangle complex infringement disputes, leading to prolonged legal battles that drain resources from research and development. This environment discourages innovation, as firms face uncertainty regarding patent validity and enforcement. Consequently, the legal landscape remains fraught with ambiguity, making it difficult for new entrants to secure clear rights without facing costly challenges.

Furthermore, evolving judicial interpretations have introduced new uncertainties, particularly regarding eligibility and abstract ideas. While some recent changes aim to clarify standards, the overall trend suggests a continued tightening of patent protections that may stifle technological advancement. The rise of trade secret protection for emerging technologies like generative AI further complicates the traditional patent framework, shifting focus away from public disclosure. This shift undermines the transparency that patents are designed to provide, creating additional hurdles for competitors seeking to understand and build upon existing innovations. As a result, the current legal framework fails to balance incentives for invention with the need for open competition, leaving many stakeholders dissatisfied with the status quo and seeking more equitable solutions.

## EDiscovery And Document Drafting Costs

Current patent law faces significant hurdles regarding eligibility and procedural fairness. Recent shifts suggest the Patent Trial and Appeal Board remains hostile to patent holders, often acting as a death squad for valid claims. Simultaneously, the USPTO’s attempts to resolve eligibility problems indicate ongoing uncertainty in subject matter eligibility standards. This instability forces companies to reconsider protection strategies, with some shifting toward trade secrets for generative AI inventions. Such moves reflect a broader trend where traditional patent mechanisms struggle to keep pace with rapid technological advancements, creating legal ambiguities that hinder innovation and investment in critical sectors.

Furthermore, structural issues like patent thickets and litigation abuses severely hinder biosimilar development, creating barriers to affordable healthcare. These complexities drive up eDiscovery and document drafting costs, as legal teams spend excessive resources navigating overlapping claims and defensive strategies. Despite efforts to streamline processes, the current framework often prioritizes litigation over genuine innovation. Companies face rising expenses not just from filing fees, but from the extensive documentation required to defend against invalidity challenges. This environment discourages risk-taking, as startups and established firms alike grapple with unpredictable outcomes. The cumulative effect is a system that prioritizes procedural maneuvering over substantive technological progress, ultimately slowing economic growth and limiting access to essential medical advancements for patients worldwide.

## Patent Law Setback Comparison

| Setback Category | Specific Issue | Impact on Innovation |
| --- | --- | --- |
| Eligibility Challenges | PTAB as "Patent Death Squad" | Uncertainty in patent validity |
| R&D Delays | Novo CEO addresses speed gaps | Slower therapeutic development |
| Protection Shifts | Move toward trade secrets | Reduced public disclosure |
| Market Barriers | Patent thickets hinder biosimilars | Higher costs for patients |

Current patent law faces significant hurdles including PTAB challenges and eligibility uncertainties that destabilize innovation. Companies increasingly shift toward trade secret protection for AI inventions due to litigation risks. Meanwhile, patent thickets obstruct biosimilar access, raising costs. These setbacks collectively slow R&D progress, creating gaps between pharmaceutical leaders and competitors while undermining the economic benefits traditionally driven by robust patent systems.

## Quick answers

### Does the PTAB still favor invalidating patents?

Recent changes have not eliminated the PTAB's tendency to invalidate patents, maintaining high risks for owners.

### Why are companies shifting to trade secrets?

Generative AI inventions face eligibility hurdles, prompting firms to protect algorithms as trade secrets instead.

### How does Alice affect software patents?

The Alice decision creates persistent ambiguity, making it difficult to secure and enforce software patents.

### What hinders biosimilar development?

Complex patent thickets and aggressive litigation strategies significantly delay and complicate biosimilar market entry.

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