Striking a balance: Researchers urge Ukraine Government to weigh long-term implications of secret patents post-war

As Ukraine’s inventors and small businesses continue to answer the call to the defence of their homeland and new designs emerging frequently, Ukraine is quickly establishing itself as a hub of innovation. However, the conflict in Ukraine has brought the issue of secret patents to the forefront of international attention once again.

The newly published paper raises questions about patents for secret inventions and, while this may be necessary for the short-term, keeping patented inventions secret can have negative consequences for innovation in the long-term.

Lead researcher Professor Duncan Matthews, Queen Mary University of London explained: “Weapons or other military hardware are, without a doubt, technologies which would benefit from consideration under the secret patent provisions of Ukrainian law, but the risk is that, potentially, inventions can be kept secret even though they have no apparent national security implications. We know from other conflicts that there are already reports of such examples, including eye prothesis, solar panels and cell-phone technologies.”

During times of war or national emergency, governments may have the power to restrict access to patented inventions for defence purposes. This means that if a company or individual holds a patent for an invention that could be deemed necessary for national security or defence, the government could insist that the patent and the invention are kept secret.

Co-author of the paper Dr Hanna Ostapenko,Taras Shevchenko National University of Kyiv, who is hosted at Queen Mary University of London for a two-year period and funded by the British Academy Researchers At Risk Programme in collaboration with the Council for At-Risk Academics (CARA) added: “In Ukraine, there is no obligation for the state to manufacture or use a secret patent. Instead, it can be kept secret without the state being required to use it. Historically, national security threats have increased the number of secret patents, but their use is not limited to periods of warfare, and secret patents may continue to be used in peacetime.”

Secret patents are not a new phenomenon, but their use has been brought sharply into focus by the war in Ukraine. When patent information is kept confidential for national security reasons, it prevents the public from accessing and building on the invention's ideas and technology, hindering its development and commercialisation. In turn, this can limit the potential benefits of the invention and stifle innovation.

Professor Duncan Matthews, concluded: “The Ukrainian conflict has highlighted the need for a more nuanced approach to the use of secret patents, one that takes into account not only national security concerns but also the potential wider economic and social implications of keeping inventions secret. As we move forward, it is important to ensure that secrecy provisions are used cautiously and in a manner that maximises the benefits of innovation for all.”

Read the paper at the GRUR International, Journal of European and International IP Law website