Contradiction of patents in revealing secrets

Question

I've been looking up some pharmaceutical drug patents, and I was surprised to see they basically reveal the entire technical process involved in creating the drug. No doubt this recipe is the cumulation of years of work and substantial capital investment.

So while I understand a patent gives exclusive right to the patent holder to make the drug, doesn't it at the same time reveal publicly the underlying technical details ? Other people cannot copy the exact drug, but they will learn a wealth of technical knowledge and apply it to other novel products they might then invent based on this existing patent. Someone explain to me how this contradiction works. Thanks.

Answer 1

That’s the whole point

In return for you disclosing your entire invention, the government grants you a time-limited monopoly on it.

You can, of course, just keep it secret, but if your secret leaks or is reverse-engineered, you have no legal recourse against people who use the leak, only against people who leaked it.

Answer 2

The whole public policy justification for patents is to bust trade secrets into the open and reproduce the knowledge in the public domain, and to facilitate private work on research and development that otherwise would not occur due to the inability to preserve exclusive knowledge of the results.

In exchange, the beneficiary of the patent is granted a time-limited trading right, is relieved from any costly measures he might have needed to take to protect the secret, and is facilitated to develop a trade which might not even be feasible to start without the initial protection of the patent.

Once the patent expires, the assumption is that the patent holder should already have covered his R&D and startup costs, established himself in trade, and therefore continues to have an advantage against any new competitor.

If someone else takes the documented patent and immediately uses the insights within it to develop another thing, then that continues to contribute to the public policy. That is so even if the original patent is completely superseded and effectively rendered worthless.

Obviously, the patent holder is deprived of the economic benefit he expected it his patent is superseded, but then it's up to him to stay at the forefront or else fall by the wayside.

Also, it's not always possible to develop a system that copes equally well with all circumstances, especially hypothetical ones. In some cases, we have to accept systems that cope well with typical circumstances or on average.

The public policy purpose of patents is not to guarantee the enrichment of holders or to reward them for work actually done, it is to give holders a particular chance at enrichment in exchange for publication of their knowledge. It is the person with valuable knowledge who can decide whether he wants to play that lottery or not.

Answer 3

In the US, a patent must be what practitioners call "enabling", allowing people who read the patent to make it's fruits.

From The Patent Office:

2164 The Enablement Requirement [R-11.2013] The enablement requirement refers to the requirement of 35 U.S.C. 112(a) or pre-AIA 35 U.S.C. 112, first paragraph that the specification describe how to make and how to use the invention. The invention that one skilled in the art must be enabled to make and use is that defined by the claim(s) of the particular application or patent.

Answer 4

Someone explain to me how this contradiction works.

What contradiction? A patent is a legal monopoly, which the Government grants you. They, understandably, want something in return. They want you to tell everybody how to make your invention, so that others can make the invention when the monopoly expires. Alternatively you can licence other people to make your invention, in return for fees that you set.

If you don't it like it, you are free to keep your process as a trade secret, but the government won't help you if someone else figures it out. And your competitors have one big advantage: you have already proven that it is possible.

Now where is the contradiction?

Answer 5

The requirement for disclosure of an invention in a patent specification (e.g. in 35 USC 112) is not really (at least in the view of lawyers) a contradiction -- as other responders here have already pointed out. Nevertheless the requirement can certainly give rise rather easily to dilemmas of decision and to seeming contradictions for technologists who are interested in patent rights. There are incidents about the disclosure requirements that can explain how a sense of contradiction about it can be really and keenly felt even though well-established legal theory would deny it.

First, the basic apparent contradiction can be explained (and rather often has been explained) as part of a kind of bargain made by an applicant for patent rights, for rights in return for disclosure. This has been mentioned by other responders here already: the idea also has ramifications not always explored, some of which are argued for example in this article ("The Misunderstood Function of Disclosure in Patent Law") Harvard Journal of Law & Technology 23(2), 401-446 (A J Devlin, 2010).

In a nutshell the patent owner gets the (material, commercial) benefit of the invention during the patent term, and in return the public gets the benefit afterwards, through the description that then enables (technically) anybody else to exploit the invention too. This idea of a bargain is not usually explicit in legal constitutive documents for patent law (e.g. in the patent and copyright clause in the US Constitution), but judges in patent cases down the centuries have at various times made approving reference to the idea, at least as if it were a kind of explanatory metaphor that can sometimes provide help towards perceiving the merits of a case (e.g. in some of the cases cited in the article referenced above).

But there is also a point at which the disclosure requirement can seem to work real contradictions, even harsh ones. This is often the point at which a full disclosure of one invention, in a patent specification, can turn out in practice to call for the disclosure of what amounts to a second invention as well -- perhaps for example a special tool or technique or ingredient for making the subject of the first invention. Such a second invention quite likely will not be covered by, and will not be the claimed subject of, the patent being sought for the first invention.

Such situations can pose knotty legal and technical problems, since the publication of the patent specification for the one invention being protected will also involve public disclosure of the second invention as well. Such an event puts an end to the possibility of keeping the second invention confidential -- where it has been made part of the disclosure for the first invention -- and the publication event also rules out at least some options for future patent protection of the second invention. When this situation strikes, there can sometimes, though not always, be solutions for those who also wish to preserve also some rights for the second invention; but these call for advance planning and careful fact-analysis about the legally-required extent of the descriptions (and perhaps simultaneous applications to protect both inventions).

These are a few of the ramifications that can explain how the sense of contradiction about the disclosure requirement can be really and keenly felt in spite of the well-established legal theory to the contrary.