Map the information before choosing protection
A single device may combine a visible structure, control algorithm, manufacturing parameters and records of unsuccessful experiments. An all-or-nothing patent-versus-secrecy decision can therefore be too broad. Our editorial proposal maps layers: what is discoverable from the product, what remains on a server or in the factory, what partners need and what researchers intend to publish. Each layer may need a different approach and a clearly assigned process owner.
Under Polish law, a “confidential” stamp alone does not establish trade secret status. Article 11 of the Act on Combating Unfair Competition connects economic value and limited availability with measures preserving confidentiality, including for a particular combination of elements. [1] The project record should identify the information and explain its value rather than treating the entire business as one undifferentiated secret.
What secrecy can and cannot deliver
Directive 2016/943 distinguishes unlawful acquisition from independent discovery and certain forms of studying a lawfully held product. Circumstances and legally valid restrictions matter. Trade secrecy therefore does not create a general prohibition on a competitor independently reaching the same solution. [2]
Our proposed technical test asks what a competent team could learn after buying the product, and at what effort. An easily disassembled component presents a different disclosure risk from a process invisible in the finished item. Record assumptions and test results rather than intuition alone. Examine contracts and applicable law separately; do not assume every anti-analysis clause binds everyone or is enforceable in every setting. The commercial plan must reflect these practical limits.
Patent disclosure and the publication calendar
A European application must disclose the invention clearly and completely enough for a skilled person to perform it. A strategy cannot depend on withholding a detail necessary for the claimed solution to work. [3] Combining patents and know-how therefore requires identifying what is essential to the invention and what is additional manufacturing or organisational knowledge beyond the required disclosure.
European applications are generally published after eighteen months from filing or priority, with earlier publication possible. [4] We propose a shared calendar for R&D, the person responsible for filing and the academic author. Include conferences, preprints, theses, demonstrations and partner disclosures. Each event should identify the document version and the person approving its scope. A publication deadline should trigger a review of content, rather than a last-minute assumption that all material is safe to release.
What the research literature adds
David J. Teece’s 1986 article examines why innovators do not always capture the economic returns from innovation, highlighting imitation conditions, strategy and complementary assets. [5] This is an economic framework, not a legal rule or evidence that either patents or secrets will be best for a particular business.
Our practical proposal adds questions about manufacturing, distribution, service, partner access and infringement detection to the legal comparison. Strong formal protection without an implementation route may leave the commercialisation problem unresolved. Rapid execution does not remove the need to examine third-party rights. Compare scenarios such as independent production, licensing, research collaboration and choosing not to seek exclusivity for a particular layer. State which commercial assumption makes each scenario attractive and which event could undermine it.
Designing controlled disclosure
WIPO describes organisational and technical safeguards including access restrictions, document marking, confidentiality obligations and permission reviews. [6] Our implementation proposal starts with an information register rather than marking every file secret. For each category, record the reason for access, authorised roles, storage location, permitted transfer method and review date. A specific register allows the team to explain what it is protecting and why the chosen measures fit its actual workflow.
Before approaching a partner, separate the general presentation from the technical package. Record recipients, delivered files, versions, confidentiality basis and agreed use. When cooperation ends, review access, copies and return or deletion obligations. An NDA signature does not explain why a secret formula was subsequently available through a public folder. The technical process should match the promise in the contract, and the handover record should make that correspondence reviewable.
Educational example: a coating and furnace settings
A fictional team develops a new coating structure and furnace settings improving consistency. Analysis may distinguish the product-visible solution from additional process parameters. Before deciding, however, establish whether those parameters are necessary to perform the claimed invention. Labelling a detail know-how does not automatically make it permissible to omit it from an application. This example does not describe an actual client or resolved dispute.
The final decision record should compare imitation, secrecy feasibility, required disclosure, markets, budget and enforcement. Include a scenario for accidental publication. Article 55 EPC provides limited exceptions for particular disclosures, rather than a general European grace period for any self-publication. [7] If disclosure has happened, preserve its exact record and promptly assess its legal significance instead of assuming a later NDA can undo it.
Revisit the decision at research milestones. A new manufacturing contract, public repository, departure of a key person or demonstration of easy reverse engineering may change the assumptions. Preserve the previous decision, change date and reason rather than rewriting history as though the strategy never changed. This helps explain why one result entered an application, another an academic paper and another a restricted circulation record identifying the particular information being protected.
Sources and further reading
- 1Polish Act on Combating Unfair Competition — consolidated text 2026 ↗
Polish Journal of Laws 2026, item 85; Article 11
Definition and lawful acquisition of trade secrets; checked 18 October 2026.
- 2Directive (EU) 2016/943 — trade secrets ↗
CELEX 32016L0943; art. 2–3
Definition, independent discovery and product study within the legal conditions.
- 3European Patent Convention — Article 83 ↗
EPC, art. 83
Disclosure enabling performance of the invention.
- 4
- 5D. J. Teece (1986), Profiting from technological innovation ↗
DOI: 10.1016/0048-7333(86)90027-2; Research Policy 15(6), 285–305
Publisher metadata and abstract verified. Discussion is limited to the stated economic framework; no claim of reviewing the full article.
- 6WIPO — How to Protect Trade Secrets? ↗
Official WIPO guidance
Examples of safeguards and their fit to the information; checked 18 October 2026.
- 7European Patent Convention — Article 55 ↗
EPC, art. 55
Limited exceptions for non-prejudicial disclosures, not a general publication grace period.
Rekel Patent — an intellectual-property information website. Publisher: Vadym Rekel.