The War in Ukraine Raises Questions About Patents for Secret Inventions

Abstract

Patent information must, in certain circumstances, to be prevented from being made available to the public for reasons of national security. This policy imperative deviates from the conventional approach under patent law which emphasises a bargain with society, whereby patent rights are granted in return for disclosure of the invention and communication to the public. How best to achieve a balance between keeping the invention secret for reasons of national security and disclosure of the invention will depend on circumstances that may well change rapidly. The stronger the threat to national security, the more the policy tends to lean toward keeping certain inventions secret. The war in Ukraine brings this patent policy imperative sharply into focus. This opinion undertakes an historical analysis of patent law approaches for keeping inventions secret in key countries, and analyses current arrangements for the patent protection of secret inventions in Ukraine. The opinion concludes that Ukraine should consider the long-term implications of keeping patented inventions secret when the war finally comes to an end, having regard to the potentially negative consequences for future innovation. The opinion also recommends that Ukraine provide adequate compensation for patent proprietors, taking in to account the economic losses associated with the fact that secrecy orders will prevent the commercialisation of otherwise potentially lucrative inventions.

Keywords: Ukraine, patents, secret inventions, national security