UPHG blog

By Katarina Halldin, September 2026.​​​​

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The Principle of Public Access as a Barrier to Patentability

The Scope of Confidentiality Protection for University Research Funding Applications in Swedish Law

 

Master thesis summary.

Katarina Halldin, Uppsala University, Spring 2026

Supervisor: Professor Bengt Domeij

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This thesis examines a structural tension in Swedish law: the constitutional principle of public access to official documents can unintentionally undermine the patentability of university research. When a researcher at a Swedish university applies for research funding from a state funding agency such as the Swedish Research Council, Forte, Formas or Vinnova, that application becomes an official document under the Freedom of the Press Act, and in principle, anyone can request to see it. This matters because, under patent law, technical information can become prior art once it is publicly accessible which can either destroy an invention’s novelty outright or, more subtly, combine with other known technology to undermine its inventive step. This second, less obvious risk was illustrated by the Patent and Market Court of Appeal in case PMT 2840-24, where a Swedish ethics-review decision, which had become public, contributed to invalidating a European patent for lack of inventive step, even though the decision itself did not reveal the invention outright.

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Examining Sweden’s main confidentiality provision in this area, Chapter 30, Section 23 of the Public Access to Information and Secrecy Act, the thesis identifies three structural weaknesses: uncertainty over whether the provision applies to basic research funding, which lacks a clear trade and industry connection; a damage requirement that places the burden of proof on the researcher despite the harm being irreversible; and a right to disclose confidential information to the media that, for most public funders, remains unaffected by the secrecy provisions. A disclosure request submitted to Vinnova as part of the thesis further illustrates the unpredictability of the current framework in practice.

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A particularly important part of the analysis was the comparison with Finland. Although both countries share the same constitutional tradition of public access to official documents, they have adopted different approaches to research funding applications. Swedish law rests on a presumption of openness, whereas Finnish law rests on a presumption of confidentiality. The Finnish model also requires no commercial connection and expressly identifies patent protection as a purpose of the rule. Case law from Finland’s Supreme Administrative Court shows that administrative information, such as what is funded and how much, can remain public while the technical core of the research stays protected.

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The thesis concludes that Swedish law would benefit from a reform inspired by, but not directly adopted from, the Finnish model. A time-limited presumption of confidentiality, combined with a reversed burden of proof and an explicit patent-law purpose, would address shortcomings in the current openness-first approach. At the same time, an exception for information that can be separated from the technical core of the research could help avoid the risk of over-protection inherent in the Finnish model. Such a reform would provide researchers, universities, and innovation offices with a more predictable starting point for protecting potentially patentable research, without sacrificing public insight into how government research funding is spent.

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About the author:

Katarina Halldin holds a law degree from Uppsala University, specializing in intellectual property. This thesis was written as her final degree project, under the supervision of Professor Bengt Domeij.

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Contact: Katarinahalldin@live.com

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Download the thesis here (inSwedish): https://urn.kb.se/resolve?urn=urn:nbn:se:uu:diva-597990​ 

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