Bonum Certa Men Certa

The Concept of Confidentiality May be Self-Defeating in the Context of Patents

If confidentiality or secrecy is the very thing patents were conceived to tackle/discourage...

Patents encourage publication but please keep it all a secret



Summary: If transparency through publication is the supposed motivation of patents, then why is the concept of confidentiality so strictly enforced (even when the EPO itself actively violates the confidentiality of applicants and other stakeholders)?

WHEN someone produces a physical invention it is possible to disassemble it and possibly reverse-engineer it thereafter. It doesn't matter if there is or isn't a patent, so in a sense that invention is disclosed as soon as it hits the market/s. The specifications underlying this invention just aren't formally disclosed. In the case of drugs (or chemicals) the production process may not be obvious to the recipient of a drug. However, the ingredients can be determined and sometimes the structural composition as well. In both cases we can see that patents as means of publicising an invention (unlike secrecy or even trade secrets) may be moot; and sure, sometimes patents allude to things that do not exist in the market (yet, if ever) and having some formal description may be valuable for reproduction (in the future or at present by peers/competitors). When it comes to software patents, it all boils down to code. If it is Free software, anyone can study and also copy that code. No point to patents on those...



The American courts, having already grappled with 35 U.S.C. €§ 101, more or less concluded that patents pertaining to nature and code aren't valid. Alice and Mayo may have put millions of US patents in their graves (or already-expired patents even deeper in the ground). For over 5 years SCOTUS has refused to revisit or reconsider the matter; as for the Federal Circuit (one level below SCOTUS), it rarely deviates from this well-cemented norm...

There are many misconceptions abound regarding patents and it's up to us, non-lawyers, to address and correct those falsehoods.

"The concept of confidentiality in this case is akin to "trade secrets" -- a sort of thoughtcrime, with laws enforceable by employers who seek to make the mere 'possession' of some knowledge a 'crime' (somewhat like NDAs)."Recently, the appeal boards in Munich (oh, sorry! Haar, but let's pretend it's part of Munich) dealt with the aspect of secrecy surrounding patent-pending research. This week UDL published an article about it. Sorry to disappoint you, UDL (promotional piece in Lexology, akin to a paid press release), but the European Patent Office (EPO) does not protect confidentiality and barely grasps that very concept. Under the watch of António Campinos it has happened repeatedly after being 'normalised' in the Battistelli era.

Here are some portions from the article:

The confidentiality of patient data is an essential consideration in any clinical trial — but stakeholders must also consider the confidentiality of the invention being trialled. If just one member of the public can access information about the invention before a European patent application is filed — whether this is through writing, oral disclosure or use — the invention may lack novelty.

This is so important due to the sheer number of stakeholders involved in a clinical trial, which can include sponsors, Contract Research Organisations (CROs), investigators and site personnel, healthcare personnel, regulatory agencies and participants.

[...]

While the Boards of Appeal of the EPO found in T598/12 that a trial participant isn’t a member of the public in the strict sense, a particularly contentious area of law is whether unused and unreturned trial drugs form a public disclosure.

A general principle of the European Patent Convention, following the Enlarged Board of Appeal’s Decision in G1/92, is that the chemical composition of a product is state of the art when the product as such is available to the public and can be analysed and reproduced by the skilled person, irrespective of whether or not particular reasons can be identified for analysing the product.

[...]

The Opposition Division followed T7/07 in agreeing that information given to patients cannot be regarded as prima facie confidential. Indeed, it might be considered unethical to bind trial patients by general explicit or implicit confidentiality obligations, as they should be able to discuss medication with their spouses and doctors. However, it was found that trial participants were under a legal obligation to use the tablets according to a stipulated schedule and return any non-administered drugs. In contrast to T7/07, loss of control over the return of the dispensed drugs hadn’t been established, as patients were legally prevented from disposing of the drugs and also from passing on information contained in them to third persons not bound by confidentiality. Any ‘breach’ therefore didn’t allow a conclusion to be made that the tablets were available to a member of the public.


The concept of confidentiality in this case is akin to "trade secrets" -- a sort of thoughtcrime, with laws enforceable by employers who seek to make the mere 'possession' of some knowledge a 'crime' (somewhat like NDAs). Do we really wish to steer patent law in such a direction? Isn't that rather antithetical?

Recent Techrights' Posts

Society Will Only Improve Owing to People Who Push Boundaries
Push boundaries with ideas and facts, not with forbidden language
Digital Sovereignty Discussed in the United Kingdom (UK)
Digital Sovereignty would be nice, but let's remember what contributes to it
IBM Adds Only More IBM Staff to the Fedora Council, They Like LLM Slop for Posting 'Articles'
It's like Canonical with Ubuntu, only worse
 
Links 19/06/2026: The Retweeting Class and Data Centres as National Security Risk
Links for the day
Don't Attack the Wives (or Spouses) of Pundits/Activists/Journalists
We will be writing several series about this in the future
Internet Relay Chat (Shorthand IRC) is Still Growing
Contrariwise, social control media is waning
The Register MS Published a New Page With "AI" 21 Times in It. It Was Paid SPAM.
The former editor of the The Register MS admitted to me (directly) that he knew all this "AI" stuff was stupid hype
Murdoch's Wall Street Journal (WSJ) Associates Dependence on a Ponzi Scheme With "the Future"
Those ludicrous ads (disguised as rankings) from WSJ deserve scorn and ridicule
The XBox Story is Still Fast-Developing, the Layoffs Are Confirmed to be Happening Already (Mid-June), Just Not "Officially"
Workers have Microsoft have long braced for what is happening this summer and will accelerate further in two weeks' time
Fake News From Rupert Murdoch's WSJ Could Not Keep IBM From Sinking
"2026 Best Companies for the Future"?
To GNU, AV2 Adoption May be a Year If Not Years Away
The leap between versions means that there is fertile ground for incompatibilities
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, June 18, 2026
IRC logs for Thursday, June 18, 2026
Gemini Links 19/06/2026: "Born and Raised by the Internet", Fifteen Years in Gopher
Links for the day
Links 18/06/2026: Clown Computing Has Harmful Sound, Facebook "Must Face the Music (Infringement Litigation)"
Links for the day
IBM Common Stock Down to About $250, It Was at $330 Just 17 Days Ago
Happy birthday IBM!
Microsoft's CEO Openly Admits XBox is Not Sustainable and Microsoft is Beginning to Admit Slop Isn't Working and Is Not Not Sustainable Either
Expect Microsoft cancellations next month (or later this month) to impact far more than XBox and some studios
EPO and Disabilities: Payments Allegedly Disabled
But people who do cocaine can claim paid "sick leave" (over 100,000 euros for no work at all) if the President sleeps with them
SLAPP Censorship - Part 110 Out of 200: Anti-SLAPP Reform Formally Advanced in the United Kingdom (UK) the Same Week the Serial Strangler From Microsoft (US) Does Forum-Shopping in the UK
The only language they understand is money. They don't understand privacy.
Links 18/06/2026: UK Social Media Ban for Minors, Finland Lifts a Nuclear Weapons Ban
Links for the day
'Article' With "AI" 27 Times in the Page, It's "Partner Content" (Paid Spam) as Usual at The Register MS
We deem this a timely reminder that a lot of the hype around slop is paid-for lies
Microsoft Layoffs Have Reportedly Already Started at ZeniMax
The overall scale is unknown
Cyber Show: "Our independence remains intact and we're set to continue relentlessly probing the world of digital technology with hard questions"
As one should
European Patent Office (EPO) Series: Leveraging the Lusitanian Connection
Mendonça no longer functions as an independent agent but rather as a fig-leaf for a mafia-like entity that prizes obedience over integrity and self-preservation over truth
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, June 17, 2026
IRC logs for Wednesday, June 17, 2026
The "Official" Numbers That Say "Microsoft Layoffs" Will be Misleading
The scale of the layoffs in gaming will be unprecedented
SLAPP Censorship - Part 109 Out of 200: When You Drag Family Members Into a Case Unrelated to Them Because Their Relative Published Something
This did not exactly surprise us given what we had already encountered
SUEPO Munich Informs/Contacts the German Government About the Situation at the European Patent Office (EPO)
Salary Erosion Procedure: Two letters to Germany
Gemini Links 17/06/2026: Feeling "Useful"; PISA Pen-and-Paper Cipher
Links for the day
Trajectory of O'Reilly: From Publisher of Books to Microsoft Advertiser
The state of the media is not good and when prolific book publishers start running ads as 'articles' or videos (never mind the disclosure) it is rather tasteless
Links 17/06/2026: Slop's “Crack Cocaine” Approach to Pricing, Microsoft's Rapid Shrinking of Gaming Business
Links for the day
Links 17/06/2026: "How Developers React to Slop-Scented Blog Posts", Police Caught Fabricating Evidence Using Slop
Links for the day
More Than 90% in European Patent Office (EPO) Ballot Vote for Continuation of Industrial Actions/Strikes, About Half Wish to Further Intensify These
Ballot results on intensification of actions
If Not Now, Then When?
If you are not part of the solution/s, then you're merely a vessel or passive participant
Microsoft Offers People 'Retirements' (Again) to Fake (Artificially Lower) Number of Layoffs, Those People Are Nowhere Near Retirement Age
Microsoft implicitly affirms huge cuts are coming
Gemini Links 17/06/2026: 10 Years in Canada, Wild Flower Explorations, and Microslop
Links for the day
European Patent Office (EPO) Series: The Portuguese Prodigy
In this part we will present some additional background information about Mendonça's activities before he joined the EPO
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, June 16, 2026
IRC logs for Tuesday, June 16, 2026