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

Gnome Foundation Inc is in Trouble
the agenda is set GAFAM and IBM rather than donors
SLAPP Censorship - Part 22 Out of 200: When You Complain People Impersonate You in IRC (But You Yourself Impersonate People in IRC and Lock Them Out of Their IRC Handles)
We'll cover this with direct evidence some time soon
 
Fedora Maintainer-ship Using Slop (Mistakes) Would Make Fedora Less Reliable
It won't produce reliable code or stable systems one can rely upon
IBM's "Legacy Employees" (Experienced Workers, IBM Management Dubs Them 'Dinobabies')
This notion of "legacy employees" seems like something overlapping with "expensive" (well paid) staff, even if not entirely equivalent
EPO's "Current Industrial Actions Are Likely to Intensify Further."
There is another strike in 5 days
This Morning The Register MS Published Slop Promotion With the Term "AI" 15 Times In It. The Register MS Was (As Usual) Paid to Do This
This is not a serious publisher
SLAPP Censorship - Part 23 Out of 200: We Were Right All Along (for 2 Years) About Third Party Funding and Willingness to 'Break the Bank' in Pursuit of "Revenge"
How much damage can a person do to oneself in pursuit of cover-up of legitimate technical concerns?
Links 25/03/2026: Airports Further Militarised, "Slopification and Its Discontents", Microsoft 'Open' 'Hey Hi' Shutting Things Down
Links for the day
Gemini Links 25/03/2026: Blogging Fright and Absolutely Useless 'Apps' Made by Slop Machines
Links for the day
Rise in Energy Prices Will Significantly Accelerate the Death of So-called "AI Companies"
It should be noted that fake news about Microsoft OpenAI doubling workforce (mere words, not actions) can serve as a nice distraction from the death of Sora due to divestment
It's Always a Question of Trust
There's a widespread stigma of lawyers being manipulative and chronically dishonest
Solicitors Regulation Authority (SRA) Must More Carefully Investigate or Assess the Financial State of Law Firms in the UK
We'll cover this in depth in the future
GAFAM Mozilla Removes Theora Support, Now GNU Needs to Re-encode Videos
Mozilla used to mean something to Free software advocates
An Open Admission Profits Depend on Addiction
Proprietary software tends to be like this
IBM Americas President Ayman Antoun Comes to OpenText, Weeks Ahead the Mass Layoffs Begin
Is that what IBM will be good at?
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, March 24, 2026
IRC logs for Tuesday, March 24, 2026
Gemini Links 24/03/2026: Junk Drawer Time Capsule and Building Outside Alire
Links for the day
Not Much LLM Slop About "Linux" Lately, It Only Ever Comes From the Same Few Sites
As long as only few such sites use LLM slop we can skip and avoid them
Links 24/03/2026: "Epic Lays Off Over 1000 Employees" and US in Financial Trouble According to the Fed
Links for the day
The "Media" Does Not Only 'Miss' Mass Layoffs
"The Treasury just declared the U.S. insolvent. The media missed it"
The Empty Suits of IBM Managers (NIH or "Nothing Invented Here")
IBM's management adopted the business model of parasites
2012: 'Secure' (Microsoft-Controlled) Boot Has Not (Yet) Been Made Obligatory. 2026: systemd Has Not Implemented Age Verification
should we stop calling "nazi" everyone we don't agree with?
More Threats (Including Physical Threats) Against Us Are a Dumb Move
It's like a "hit list" (targets list) and I shall keep the police duly informed
New Example of Pentagon in "Feminist" Clothing Inside Fake News of Publishers Paid to Promote Outsourcing to US ("Clown Computing") and American Slop
Google now pays money to promote Google as a friend of women
Hating Techrights is a Career
but is it good for civil society?
Dr. Stallman’s Work Will Never be Considered 'Mainstream' Because He Rejects and Works Against the So-called 'Mainstream'
Try to be more like Stallman
The New Layoffs: 'Silent Layoffs', 'Secret Layoffs', 'Quiet Layoffs', 'Passive Layoffs' 'Stealth Layoffs', and Unannounced Layoffs Disguised as Return-to-Office (RTO Mandates)
The US needs to revisit and fix the WARN Act
EPO "Cocaine Communication Manager" - Part IX - Cocaine Addicts in Charge of the EPO Attacking Families of EPO Staff
Things like being high-profile and being a serious drug addict aren't opposites
What Feminism in Science Means (Codes of Conduct Don't Tackle the Real Issues)
Universality matters, more so in a project or community that's said to build the "universal operating system" (Debian)
SLAPP Censorship - Part 21 Out of 200: It's About Behaviour Online, Not How Much Money From Shadowy Third Parties Gets Spent on Lawyers and Two Barristers
75+ KG of legal papers, 2 cases, 2 barristers (one hiding in the metadata) and maybe two law firms (also hiding in the metadata) against two modest people in Manchester seems disproportionate and vindicative
Links 24/03/2026: "Airports on ICE" and "Have You Paid Your “Intuit Tax”?"
Links for the day
Gemini Links 24/03/2026: Slop Interview and Why Slop Makes Lousy Code
Links for the day
Richard Stallman to Give Public Talk This Thursday at the University of Bologna (Italy)
Hardly the first time he speaks in Bologna
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, March 23, 2026
IRC logs for Monday, March 23, 2026
Gemini Links 23/03/2026: "Mandatory" Bad Things and Dangers of Perfection Aspirations
Links for the day
SLAPP Censorship - Part 20 Out of 200: All Roads Lead to Rome and to GAFAM Funding
Now about 10% into this series
Last Week's EPO Strike Was the Biggest (Highest Participation Rate), Hours Ago General Assembly Discussed Next (Growing) Intensity of Strikes
Well done and well attended
Mass Layoffs at HashiCorp, IBM Hid Them
The media did not mention those layoffs
Microsoft Downgraded on Concerns (Lack of Growth) Amid Silent Layoffs in 2026
The press isn't functioning anymore
Links 23/03/2026: Gulf Water at Risk, Heatwave in Malaysia
Links for the day
Slop Means False, New Article by Cybershow
"We are living in a world that is rapidly divesting from reality."
Debianism election 2026 community poll created, everybody can vote
Reprinted with permission from Daniel Pocock
Links 23/03/2026: "Shocking Peter Thiel Antichrist Lectures", Robert Mueller Remembered
Links for the day
The Scandal Bigger Than IBM/Red Hat Layoffs is the de Facto "Media Blackout" About Those Layoffs
So we have a media crisis, aside from the economic crises
Gemini Links 23/03/2026: Geminispace/Elpher Enhancement and the Cerberus Cinco
Links for the day
Fear is Not a Legitimate Factor
Smart people know that trying to prevent moral people from doing the "Right Thing" will backfire
Fuel Autonomy and What It Teaches Us About Software Autonomy (or Software Freedom)
Need we wait until a "software Pearl Harbor" or protect ourselves proactively by weaning ourselves off of GAFAMware?
Scheduled Maintenance This Coming Wednesday
Other than that, all is the same and we carry on as usual
Most Press Articles About IBM Are LLM Slop, Sometimes With Slop Images
IBM basically laid off almost 1,000 people last week [...] At the moment about 75% of the 'articles' we see about IBM (in recent days) are some kind of slop
Links 23/03/2026: Security Breaches, Energy Shortages, Another SRA Scandal, and Patents on Nature
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, March 22, 2026
IRC logs for Sunday, March 22, 2026