When an inventor or a company develops a technical innovation, a crucial question quickly arises: should the invention be patented, or should its secrecy be preserved? Although complementary in certain cases, these two means of protection are based on diametrically opposed logics. To patent is to disclose. To keep secret is to reveal nothing. So, is it possible to reconcile patent and confidentiality? And above all, what are the risks of disclosing an invention too early ?
What is a patent ? An exclusive right in exchange for disclosure
The patent principle
A patent is an industrial property title issued by a national office (such as the INPI in France) or a regional office (the EPO in Europe), which confers on its holder a monopoly on the exploitation of an invention for a maximum period of 20 years. To be patentable, an invention must meet three fundamental criteria :
- Novelty : the invention must not have been disclosed to the public prior to filing ;
- Inventive activity : this must not be obvious to a professional in the field ;
- Industrial application : it must be able to be manufactured or used in industry.
A deposit involving disclosure
To obtain a patent, the inventor must file a dossier including a full description of the invention, claims (the protected elements), an abstract, and possibly drawings. This file is published, generally 18 months after filing, making the invention accessible to all. This transparency is the counterpart of the exclusive right granted by the patent.
So you can't patent an invention and keep it secret at the same time. A patent requires detailed disclosure, which will eventually be made public.
The dangers of disclosing too early: a risk to patentability
The absolute novelty rule
In European law, the criterion of novelty is very strict. Any disclosure, even by the inventor himself, before the patent is filed, is an obstacle to its grant. This means that :
- One publication,
- A demonstration at a trade show,
- A discussion with no confidentiality clause,
- A post on social networks,
can be enough to destroy novelty, and therefore the possibility of protecting the invention by patent.
Rare exceptions
In principle, any disclosure of an invention prior to the filing of a patent application precludes its protection, since this would result in the loss of the novelty criterion. However, two exceptions provided for by the European Patent Convention (Article 55 EPC) and the French Intellectual Property Code (Article L.611-13 CPI) enable patentability to be preserved in exceptional cases.
The first concerns disclosures resulting from clear abuse of the applicant's rights, such as breach of a confidentiality agreement, information leakage or data theft. In such cases, the inventor can still file his patent application, provided he does so within six months of the disclosure.
The second exception concerns disclosures made in the context of a recognized international exhibition, on condition that this is declared at the time of filing and that a certificate issued by the organizers is provided. Here again, a maximum period of six months applies.
These exceptions are strict and difficult to invoke, since they require concrete proof and strict adherence to deadlines. They should not be seen as an implicit authorization to communicate about one's invention before filing. In practice, the rule remains simple: as long as the patent has not been filed, no disclosure should take place without a secure legal framework.
Best practices
Before talking about your invention to a third party (investor, partner, service provider), remember to have a confidentiality agreement (NDA) signed. Above all, register your patent before any public communication. Once filed, you are free to disclose your invention : your rights are fixed at the date of filing.
Secrecy : an alternative to patenting
A strategic choice
In contrast to patent, secrecy protection is based on non-disclosure of the invention. It requires no filing, no formalities, and no cost. It can last indefinitely, as long as the secret is kept.
The secret is particularly suitable for :
- Manufacturing processes invisible to the end customer (recipes, algorithms, in-house methods),
- Inventions with a short useful life,
- Situations where patenting would be too costly or unprofitable.
The limits of secrecy
But this form of protection also has serious limits :
- It confers no exclusive rights : if a competitor discovers the same invention through his or her own research, you have no recourse;
- It is fragile : an internal leak or negligence can lead to a permanent loss of secrecy ;
- It offers no visibility or official recognition of innovation.
In court, it is difficult to act without solid proof of the breach of secrecy. This is why secrecy relies on robust contractual mechanisms (confidentiality clauses, internal policies, IT security).
First patent, then communication
In short, you can't obtain a patent while keeping your invention secret. The patent system is based on a balance between public disclosure and legal protection. Keeping an invention secret and protecting it at the same time with a patent is therefore incompatible.
But that doesn't mean you always have to disclose everything: as long as you haven't filed, discretion is essential. Each situation deserves a strategic analysis, based on your objectives, the nature of the invention and your ability to guarantee confidentiality.