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

Linus Torvalds Blasts Software Freedom Conservancy (SFC) for Attempting to 'Protect' Linux
Like it 'protects' women
New Record for GNU/Linux in Australia (at Microsoft's Expense)
Windows is at an all-time low, GNU/Linux... all-time high
Fighting Over Whose Pockets Are Deeper (or Who Borrows More Money)
When processes favour those who are more wealthy (or more willing to go into infinite debt or steal money of other people) those processes match the attributes of lawfare rather than law
Starting a Book With a Flawed Premise or Weak Hypothesis
To me, Schneier is a sort of "RMS of sec"
Microsoft's Mass Layoffs (30,000+ in 2025) Not About "AI", Just Business Failure
"AI" is replacing... the old excuses for mass layoffs
EPO People Power - Part XVI - Berenguer Does Not Speak German, So What Did He Tell German Police That Busted Him?
based in Germany and does not speak the language
Challenges for EPO Insiders to Try to Tackle in 2026
Nothing will get solved as long as the circus that runs this show tries to keep the circus going
 
What Happens When Americans Are Out of Office (Away From Work) for a Week? Vista 11 "Share" Falls to Just 10%.
How's that for slow adoption?
2026 Will Have EPO Focus, People Will See What the EPO is Trying to Hide
We certainly hope people will be held accountable
EPO People Power - Part XVII - Drugged, Stoned, and Drunk at the Office During Working Hours (Campinos Friend and Propaganda Chief Has Long Done This)
It's a total disgrace that press all over Europe is still trying to cover this up!
Gemini Links 28/12/2025: Health Ordeals and Discontinued Pedals
Links for the day
Slop About "Linux" Came Only From One Slopfarm This Weekend
Another day has passed with no LLM slop found in our RSS feeds
Links 28/12/2025: 'Digital Detox' and Slop "Backlash Grew Massively in 2025"
Links for the day
Links 28/12/2025: "Mass Quitting Apple" and "Generative AI Industry is Fraudulent, Immoral and Dangerous"
Links for the day
Links 28/12/2025: Fascination, Holidays, and Mormonism
Links for the day
Microsoft's Weapon Against the Reality of XBox (the Console) Dying Seems to be LLM Slop
XBox is dead/dying
Raffles for the Immaterial: Unauthorised Bingo for Red Hat "Vouchers"
This is IBM and some slop images
Andy Farnell on Standing Up Against Technological Oppression
some portions from it
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, December 27, 2025
IRC logs for Saturday, December 27, 2025
Once Again, GAFAM Deletes All Your Data, Only Corrects This After Millions of People Lead an Uproar Online ("Richard Stallman Warned Us About This")
No lessons learned, eh?
You Know Your Critics Are Jealous and Have Inferiority Complex When...
One day we'll write about all this in great depth
"But Corruption is Everywhere"
"We'll always have Polio..."
Days Without Slop About "Linux"
It's time to move on
Links 27/12/2025: Canada Post Strike Called Off, Debate About Europeans "Working Over Christmas"
Links for the day
Gemini Links 27/12/2025: Household Appliances and Flight Fright
Links for the day
Links 27/12/2025: US Cracking Down on Whistleblowers, Expanding Bombardment Campaigns Worldwide
Links for the day
Resuming EPO Coverage Today, Can António Campinos 'Survive' Cocainegate?
We said we'd continue in the weekend
Links 27/12/2025: More Attacks on Media (Meduza Co-founder Sentenced to Prison in Absentia), "What Owning Music Means To Me"
Links for the day
Gemini Links 27/12/2025: geminiprotocol.net Downtime and Capsular Gemlog Manager
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, December 26, 2025
IRC logs for Friday, December 26, 2025
Tossing Embarrassing News Under the Christmastime Bus
This isn't just some coincidence; those are conscious choices
Victim-Blaming in Debian
Verhelst previously did blame-shifting when Debian suicide clusters happened
IBM Cuts in Japan, Red Hat is Attached to a Sinking Ship
IBM, which controls Red Hat, is a rapidly shrinking company
Manchester United Dumped Microsoft Because Qualcomm Sort of Did
The Windows PCs were an utter failure
Free Software Foundation (FSF) Supported by Unconventional Digital Bartering Communities
But no strings attached
Geminispace: 5,000 Capsules in 2026
There are 4.8k now
Gemini Links 26/12/2025: Careful What You Eat and "My Secret Santa"
Links for the day
The Indigenous Community Versus Corporate AstroTurt and 'Cancel Culture'
Good people will recognise exactly what's happening here and respond to it tactfully
Richard Stallman: Epstein is a Serial Rapist. Bill Epsteingate: Epstein is a Friend.
Supporting the FSF (or Richard Stallman) is supporting those who asserted Epstein had serially raped women
The Paradox of GAFAM: Saying You Protect Women, Appointing Abusers of Women to Run the Company
older articles
Censored by FreeBSD Core Team Secretary, Reinstated After Talking About it in Public
FreeBSD misfiring a CoC?
Links 26/12/2025: Chatbot Toys Terrorising Children, US Undeclared "War on Terror" Unilaterally Extends to Nigeria During Holidays
Links for the day
Links 26/12/2025: French Postal Services Under Russian Attack, U.S. Cheetos Accuse People Who Obstruct Information Warfare by Russia of "Censorship"
Links for the day
Debian's Daniel Kahn Gillmor is Wrong, Signal is No "Gold Standard" (It's Also Promoted by Proponents of Back Doors)
I'm not too sure why Debian or the ACLU would wish to associate with this
Next Year Will be the Year of Quantum, Just Like 2020, 2015, 2010, 2005 and So On
"Quantum" is the future
The Silent Power of Coercion Over Speech
The important thing is optics
Kazakhstan Doesn't Need GAFAM Datacentres (Spy Hubs)
Suffice to say, as far as we can gather nothing came out from the empty (false) promises of GAFAM's "data centers in Kazakhstan"
So Simple That You Can Touch and Feel It
In light of recent experiences
Christmas Music Project: Back to When Music Was Music
now Canonical (or Ubuntu) says we should make available tens of gigabytes of disk space
Internet Relay Chat (IRC) Under Attack by Cross-Network Spam Floods
So far we've been spared (our network has not been targeted at all) [...] Let's hope the spam won't discourage the hundreds of thousands of people worldwide who still use IRC
An "AI-Infused" Windows
Microsoft Windows isn't becoming a worthless pile of garbage by accident
Microsoft Laid Off Over 30,000 People This Year, Coders Are "Too Expensive"
Go get some popcorn. Microsoft "slopware" is about to get real!
Critics Have Long Said Microsoft Produces "Slopware", Microsoft Wants to Prove Them Right
Slop instead of code is a step in the right direction?
The Top 8 Innovations of IBM in 2025
What innovations will come out from IBM in 2026?
And as the Year Turns...
The significance of new years isn't based on geology or astronomy or anything like that
Appliances Versus Computers
Replacing a computer inside an object of some kind or inside an appliance (which nowadays includes "modern" cars) isn't simple and isn't cheap
A Dark Side of Europe
They try hard to silence people who speak about these issues
Why People Love Techrights (and Also Loved "Boycott Novell")
I will continue to publish for many decades to come
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, December 25, 2025
IRC logs for Thursday, December 25, 2025
Browsing Techrights With a GUI and 10 Megabytes of RAM Per Tab
Some people say it's not possible in 2025, maybe in part because they depend on very bloated software
A Tribute to Richard Stallman
It's about knowledge and sharing
Links 26/12/2025: Impermanence, Salt and Thermometer, Freetube
Links for the day