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

Richard Stallman's Talk at Georgia Tech is Just 2 Days Away
We're still curious to see how malicious people (or trolls) in social control media will try to slant his talk as "bad"
The "Alicante Mafia" - Part VII - The Industrial Actions Began Yesterday, Here's Why
The "Alicante Mafia" might not last much longer
openai.com Traffic Said to Have Fallen 50% in the Past Three Months, Reports Say It Nearly Ran Out of Money to Borrow
After the slop frenzy all we'll have left is environmental destruction
 
Links 21/01/2026: "Snap Settles Lawsuit on Social Media Addiction" and Attempts in the US to Revive Software Patents
Links for the day
Links 21/01/2026: Microsoft 'Open' 'Hey Hi' in More Trouble, US Has "Brown Shirts" Problem
Links for the day
Yesterday Afternoon The Register MS Published Paid Microsoft SPAM Disguised as an Article About "AI PCs"
The Register MS cannot help itself, can it? [...] Follow the money.
Microsoft's XBox is in Effect Dead Already, Now It's a Streaming and Advertising Platform
Expect many layoffs soon
EPO's Web Site Misused for Propaganda About Illegal Kangaroo Courts to Distract From EPO Scandals and Judicial Crisis in Europe
UPC is illegal and unconstitutional
Gemini Links 21/01/2026: Edible Circuits and "Sayonara HTTP"
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, January 20, 2026
IRC logs for Tuesday, January 20, 2026
IBM Hides Its Own Destruction (and Red Hat's)
It's like scenes out of '1984', which is what a now-famous advertisement from Apple compared IBM to
LLM Slop Not Dead Yet, Examples of Slop About "Linux"
We wish to see the totals down to zero
Links 20/01/2026: Cheeto Blackmails France Into 'Peace' While Looking to Annex EU, Mass Layoffs in Capgemini (Microsoft Reseller/Promoter) in France
Links for the day
Gemini Links 20/01/2026: Boxing and "Inbox Zero" Success
Links for the day
Windows and Slop Declining While Microsoft Silences Critics
Microsoft tries to suppress facts while faking 'demand' by imposing slop on everybody, everywhere
IBM Kills OzLabs, Signalling An Attack on Free Software (a Sign for Red Hat)
ibiblio also appears to have died (or experiences critical issues)
Red Hat Vice President Leaving After Nearly Two Decades
IBM's culture of secrecy is not compatible with Free software
Links 20/01/2026: "ChatGPT Health" (Latest Distraction From Being Insolvent) Flops and Raises Concerns, "The U.S. Military Faces a Reckoning on Greenland"
Links for the day
Rudeness and Vulgarity Won't Stop Journalism About Free Software
we seem to be on the right path
Readers Pleased With Layout Changes
Two days ago we began improving clarity and accessibility in the site
IBM Plans for Layoffs Becoming Clearer With "Employee Reviews"
Of course this impacts Red Hat as well
IBM is Outsourcing Red Hat's Fedora to Slop to 'Save Money'
If IBM cared about quality rather than alleged "cost savings" (cutting corners), it would assign more IBM staff to Fedora, but instead the exact opposite happened, with the likes of Cotton and Miller removed from the project
European Patent Office (EPO) Industrial Actions Formally Start in Two Hours
As per the latest (revised) action plan, today workers will slow down their work and limit patent grants
Microsoft Under Fresh Investigation by the Italian Competition Authority
In 2025 we kept a running tally of 30,000+ Microsoft layoffs, so 40k this year would not be unthinkable
The "Alicante Mafia" - Part VI - More Strikes Planned at the EPO, Starting This Month
Yesterday we said that friends of Berenguer or inside Berenguer's circle may have left
Gemini Links 20/01/2026: New Tea, Using a Roku at a Hotel, and "Voltage-Based Power Management for Any Raspberry Pi"
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, January 19, 2026
IRC logs for Monday, January 19, 2026
If You Don't Want "Linux" to Become "Windows", Then Follow GNU
GAFAM isn't a friend of Linux; it's only a user in the same sense clients are "users" of a brothel
Links 19/01/2026: National Broadcasters on World or Local Affairs Up to a Week Ago
Links for the day
Gemini Links 19/01/2026: Game Boy and "The Lounge" (IRC) for the Elderly
Links for the day
Slopfarms in Google News (at Least Three Today) With Fake 'Articles' About "Linux"
Google itself is trying to promote its own slop ("Overview") at the expense of original and credible sources
Links 19/01/2026: ChatGPT’s Defects and The Guardian on Why So-called "AI Companies Will Fail"
Links for the day
This is What the Slop Bubble Popping Can Look Like
Maybe not an overnight collapse, but getting there gradually
IBM Quiet About Its Plan for Red Hat Amid Accelerated Bluewashing
Something is going on at Red Hat
The "Alicante Mafia" - Part V - It Seems Like Some People Are Already Leaving "The Mafia"
they have a rough idea of what's coming
Microsoft Means War, Microsoft is on the Side of ICE
Microsoft, people-ready
More Confirmatory Rumours Regarding "Massive" Red Hat Layoffs
Ecosystem and sales said to be targeted
Proprietary UNIX is What We'll Have If IBM Red Hat Gets Its Way
IBM Red Hat wants to control everything, even if that means killing everybody
Free Software in Times of Peace (and Times of War, Too)
GAFAM and IBM are war companies
Founder of GNU/Linux (RMS) Speaks in US University (College) This Week
The auditorium has very high capacity and this is his "college comeback" talk in the United States
Office Meetings Are Most Useful to the Least Productive Workers
In my "office life" days I really didn't like meetings
LinuxSecurity and Linuxiac Are Still Slopfarms, Even Anthony Pell Does It
We suppose waiting another month or another year won't change a thing
Claim That the Board of Directors at IBM Isn't Happy With How the Company is Run
IBM tries to project an image of strength to the whole world, especially to its clients
Links 18/01/2026: Legal Trouble for xAI, Climate Concerns, Data Breaches and More
Links for the day
'Vibe Coding', Chatbots, and Other Bots (e.g. "Agents" Disguised as "Superintelligence") Aren't Saving You Time
False marketing, FOMO marketing tactics
Gemini Links 19/01/2026: Analog Cameras and Plucker in 2026, US Losing Acceptability in Europe
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, January 18, 2026
IRC logs for Sunday, January 18, 2026