The patent system is often juxtaposed with a system of trade secrets. A major difference between the two systems is that patented technology is disclosed to the public while trade secrets may remain hidden forever.
It turns out that in many cases, the patent system also promotes secrecy and witholding of information. This is especially true in scientific fields where the publication of research is postponed to await patent filing dates.
In his most recent paper, Dr. Jeremy Grushcow uses statistical analysis of data retrieved from online abstract databases and from the USPTO to demonstrate that secrecy in academic institutions is on the rise.
This paper confirms that granting patent rights to scientists and their institutions succeeds in generating increased industry participation in publicly funded research and increased patenting and commercialization activity. However, the paper also shows that scientists who seek patents are more secretive, withholding publication or presentation of their data so as not to jeopardize patentability. Notably, this paper also observes that even those university scientists not seeking patents became more secretive in response to the 1980 changes. This unanticipated increase in secrecy increases the risk of wasteful duplication caused by the patent system.
Grushcow offers several potential solutions to restore a “norm of data sharing.”
[I]ncreasing the rewards for early data sharing while providing an experimental disclosure exception to reduce the risk that early data sharing will jeopardize patentability.
Another aspect of secrecy that Grushkow did not explore is the period between filing and publication. Shortening the 18-month publication delay would allow for public knowledge at an earlier time in many cases.
Journal of Legal Studies, vol. 33 (January 2004)