Patents are a trade-off between confidentiality and exclusivity, and between strong short-term protection and more vulnerable long-term protection.
An inventor might prefer to keep an invention secret, relying on trade-secret protection to maintain an advantage over competitors. Trade secret protection can, in theory, last “forever.” For example, the formula for Coca-Cola isn’t patented, but it’s a trade secret that’s been scrupulously maintained for more than 130 years.
However, if a “secret” is apparent once a product is on the market, or if it can be discovered via reverse engineering or other legal means, then the cat is out of the bag.
In contrast, if an invention is patented, then the patent owner can enforce certain exclusive rights for the term of the patent – currently twenty years from the date on which the application for the patent was filed in the United States.
(These are the rights to exclude others from making, using, selling, or importing the invention.)
In exchange for the US government’s assistance in protecting patent rights – via the US Patent and Trademark Office (USPTO) and the federal courts – the patent owner gives up those exclusive rights once the patent term is up.
Also, granted patents are published, giving others the opportunity to learn from them and perhaps design around them.
Obviously, an inventor wouldn’t want their invention to be made public while a patent application is pending – which often takes several years – so that a potential competitor won’t get a head start.
This is why under 37 CFR § 1.14 patent applications that have not yet been granted and published under 35 U.S.C. 122(b) are generally preserved in confidence pursuant to 35 U.S.C. 122(a).
The incredibly valuable information contained in unpublished documents filed with the USPTO makes the office the target of cyberattacks.
According to Federal News Network, the USPTO found a zero day vulnerability in one of its logging libraries.
And as the USPTO itself reported,
On August 1, 2024, a stakeholder notified the USPTO that a limited amount of protected information within Patent Center was potentially accessible to the public, through certain search functions on the Assignments page.
But what if the threat of exposure is coming from “inside the building”?
As the National Law Review reported,
According to a highly critical article recently published by TechCrunch, the Department of Government Efficiency (DOGE), President Trump’s advisory board headed by Elon Musk, has “taken control of top federal departments and datasets” and has access to “sensitive data of millions of Americans and the nation’s closest allies.” The author calls this “the biggest breach of US government data.” He continues, “[w]hether a feat or a coup (which depends entirely on your point of view), a small group of mostly young, private-sector employees from Musk’s businesses and associates — many with no prior government experience — can now view and, in some cases, control the federal government’s most sensitive data on millions of Americans and our closest allies.”According to USA Today, “The amount of sensitive data that Musk and his team could access is so vast it has historically been off limits to all but a handful of career civil servants.”
It’s not clear whether that access currently includes USPTO data, but it appears that the White House’s executive order would give DOGE workers that access.
As the Washington Post reported, many DOGE workers until very recently worked (including as interns) for tech companies affiliated with Musk, such as Tesla and SpaceX.
As the Federal News Network reported,
In a letter sent to White House Chief of Staff Susie Wiles on Wednesday, Sen. Mark Warner (D-Va.), along with seven other senators, asked if Musk’s team had the necessary clearances to access sensitive government facilities, systems and records at the U.S. Agency for International Development, Treasury Department, Office of Personnel Management and other agencies. In a letter sent to White House Chief of Staff Susie Wiles on Wednesday, Sen. Mark Warner (D-Va.), along with seven other senators, asked if Musk’s team had the necessary clearances to access sensitive government facilities, systems and records at the U.S. Agency for International Development, Treasury Department, Office of Personnel Management and other agencies.
As NPR reported,
A coalition of watchdog groups and unions has filed a lawsuit seeking to block Elon Musk’s DOGE team from accessing sensitive taxpayer information at the IRS.
Other similar lawsuits are pending or in the works.
In other DOGE/USPTO news, Commissioner for Patents Vaishali Udupa has resigned in order to take advantage of the deferred resignation program with eight months of severance — known as Fork in the Road— offered by President Trump to federal workers in an email on January 28, 2025.
Five federal employee unions have filed a lawsuit challenging the program.
A significant reduction in the number of USPTO employees, either via resignations or firing, could make the current backlog of patent application reviews even worse.
The current backlog is around 826,736 unexamined applications with 26.1 months total pendency for patents.
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