In her talk, Jocelyn Bosse discussed the apparent paradox of secret patents. The very existence of secret patents would seem to contradict the so-called patent bargain of a temporary monopoly in exchange for disclosure. The patent bargain is frequently used as a justification of the patent system, and a secret patent would then be something of a contradiction in terms. However, the use of secrecy orders, in the name of national interest, can impose secrecy on a patent at any point, even after it has been granted. However, the secrecy is not total, but the patents continue to circulate in some contexts. One way to approach this problem is to view secret patents as exceptions, but Jocelyn’s talk showed that secrecy orders are a quite permanent feature of the patent regime.
Secret patents in three countries were discussed: UK, US and the Soviet Union. In all these countries, invention secrecy regimes aroused in the mid-twentieth century. The Soviet Union was the first jurisdiction to establish a permanent mechanism for patent secrecy (which also included the inventor’s certificate, sometimes presented as a socialist alternative to patents). In all countries, measures to impose secrecy were shaped by the allegiances and hostilities of the time, including espionage affairs.
Jocelyn’s conclusion was that it is unhelpful to view secret patens as an oxymoron, but that secret patents rather should be viewed in light of the general role of patents in controlling the circulation of scientific and technical information.
The discussion to a large extent focused on the patent bargain and to what extent it is a good point of departure to understand secret patents, and if it indeed is useful for understanding the patent system. It also concerned how secrecy orders work in practice, what happens for instance with technologies that have both military and civilian use, and how are secret patents handled in international cooperation. The importance of secrecy as a signal was also discussed.
Jocelyn Bosse is a PhD student at University of Queensland Law School, she lectures at Kings College, London, https://www.jocelynbos.se
Video by LiU communications officer Per Wistbo Nibell. Text by Johanna Dahlin who also chaired the event.