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A recent entry on the Retraction Watch blog (“Tracking retractions as a window into the scientific process”) highlights the retraction of an article in the Korean Journal of Physiology and Pharmacology. The retraction notice has the following wording:

We regret to inform that the published paper included a few parts that disclosed confidential information which should have been protected under patent law. We admit that the request for retraction is due to the indiscretion of the authors, and confirmed that editorial committee of KJPP have not conducted any fault in publishing the paper.

However, as with all retracted papers, the paper is still available online; even if it weren't, it was available for some time.

So, given those facts, what purpose(s) does the retraction serve? The confidential information was published, and you can't get the cat back into the bag once it's out. This indicates an ethical failure of the authors, but in that particular case isn't that something they should sort out with their employer and the financial sponsor?

It beats me.

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    I guess it is just to make sure that the patent holders are not going to sue the journal...
    – Zenon
    Commented Oct 31, 2012 at 21:27
  • @Zenon Why? the full content of the paper is still only, hosted by the publisher… and it was made available, in any case. Additionally, the retraction was made at the authors’ request.
    – F'x
    Commented Oct 31, 2012 at 21:31
  • then I can guess the company put pressure on the authors. Since we don't know which part was patented (at least I was not able to find it) the reasons might be hard to know for sure. If it is a tool, maybe the paper gives information about its error rate and they don't want competitors to quote those numbers (since the retraction invalidates all the paper). If it is part of the Compound, other studies will need to recreate this one first before continuing research, and then the company can stop them directly. I all cases'truth' might be hard to know without more info (mail the authors?)
    – Zenon
    Commented Oct 31, 2012 at 21:49
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    I hope someone with experience in that type of situation will really answer, but I guess what I was pointing at was simply 'the procedure to follow in case of breach of IP by their legal team'.
    – Zenon
    Commented Oct 31, 2012 at 22:03
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    I have no inside information here, but my guess is that the retraction is basically a way for whoever owns the intellectual property to punish the authors (by ensuring that they don't get credit or citations for the paper).
    – Anonymous Mathematician
    Commented Nov 1, 2012 at 3:44

1 Answer 1

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My answer is based on an understanding of UK patent law. The UK Patents Act 1977 is based on a "first-to-file" patent system. This means, in part, that an application for a patent may only be validly made if that invention was not part of the state-of-the-art at the time of filing. State-of-the-art includes any information made available to the public as of the priority date of the application, which is usually the date of filing.

If confidential information regarding an invention is made available to the public without the consent of the inventor, before a patent for the application is filed for it, then under UK law the inventor may still make an application for a patent without the prior disclosure - the unauthorised release of confidential information - rendering the application invalid for lack of novelty.

In this case, if the journal published the confidential information before the inventors/authors authorised the release of the information - presumably before a patent was filed for the subject matter of the paper - then the retraction of the paper may indicate that the journal is acknowledging that they released the information inproperly, i.e. before an agreed embargo date set by the authors. This may add weight to the inventors' argument that the prior release of the confidential information was made without the consent of the authors and that the authors, as inventors, may still validly apply for a patent.

I am not a patent lawyer. This is not patent advice. My comment is written from a UK patent law perspective.

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  • Thanks for this very nicely made point. I hadn't considered that!
    – F'x
    Commented Nov 1, 2012 at 9:47
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    I'd also add that the comment from the journal: "[w]e admit that the request for retraction is due to the indiscretion of the authors, and confirmed that editorial committee of KJPP have not conducted any fault in publishing the paper" suggests that the authors themselves authorised the release of the information, possibly before patent protection could be sought for it. The journal is making it clear that the journal was authorised - by the authors - to publish the information and that any consequent loss of rights regarding patent protection is therefore the fault of the authors.
    – Nicholas
    Commented Nov 7, 2012 at 12:05

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