Qualifying disclosure

A qualifying disclosure made in appropriate circumstances to an appropriate person becomes a protected disclosure, entitling the worker to protection against victimization. The PIDA lists six cases where a disclosure by a worker is a protected disclosure. Basically, the Act encourages private or semi-private disclosures, either to the employer, or to the person committing the wrongful act, and many employers have produced Codes of Practice on Pnblic Interest Disclosure, which also specify other persons to whom disclosures may be made and the way the matter is to be handled. Only if it is of a more serious nature, or if the private or semi-private route has failed, may the employee be justified in disclosing to a wider audience, such as the press, but in this case close attention needs to be paid to the minutiae of the Act, for there are many pitfalls for the public spirited, but poorly advised employee. Dismissal of an unprotected employee may... 

The product or process invention claimed in a patent must have an inventive step that is to say the invention must not be obvious to a person skilled in the art . The rationale for this is to prevent novel, but trivial or obvious, variants of a known product or process from being given a monopoly. Inventive step is a separate requirement from novelty the question Is there an inventive step is only relevant once the novelty ol a claimed invention has been established. At least at the EPO, lor the purposes of inventive step, and for the purposes of sufficiency of disclosure (see below) the fictional person skilled in the art is deemed to have the same degree of knowledge, and for bicatalysis inventions is likely to be a team of suitably qualified people e g. one Ph.D. researcher assisted by two laboratory technicians fully acquainted with the known techniques relevant to the technolog> in question. 

As we will learn shortly, not all public information is available for purposes of determining whether an invention is worthy of a patent. For example, some information may be considered in the examination of a patent application by one party but not another party, depending on who made the prior public disclosure. The types of public information that qualify for determining whether an invention is worthy of a... 

Patentability can also be jeopardized during the application process by failure to disclose critical items in connection with the invention. One is the best mode of the invention, which is the favored embodiment or means of implementing the invention, particularly the one example that functions the best or enables the invention to perform to its utmost advantage, as known to the inventor at the date of applying for the patent. The best mode must be included in the text of the patent application, and cannot be reserved as a trade secret. A second disclosure requirement is the disclosure of relevant prior art that the inventor is or becomes aware of. This is a continuing requirement that lasts until the issuance of the patent, and encompasses any publications, disclosures, uses, sales or offers, and other acts or documents that qualify as prior art. 

As noted above, FOIA Exemption 4 protects not only trade secrets but also confidential commercial and financial information. Commercial or financial information is confidential if its disclosure is likely. .. to cause substeintial harm to the competitive position of the person from whom the information was obtained. National Parks and Conservation Association v. Morton, 498 F.2d 765, 770 (D.C. Cir. 1974) (National Parks I) (emphasis added). This test does not require that harm be proven with mathematical precision. Rather, it looks generally to the commercial sensitivity of the information. For example, in National Parks and Conservation Association v. Kleppe, 547 F.2d 637, 683 (D.C. Cir. 1976) (National Parks II), the United States Court of Appeals for the District of Columbia stressed that a court (or agency) need only exercise its judgment in view of the nature of the material sought and the competitive circumstances in which the [information submitters] do business. . . . Under this standard, virtually any information could qualify for nondisclosure providing its competitive sensitivity could be adequately documented. 

Originality The invention is new and original it has not been previously disclosed in the prior art. The rationale for this condition is that the public does not benefit when the patent office grants a patent on something that has already been invented. Thus, if someone else has already submitted an application for the same invention, this would qualify as a prior disclosure. Also, disclosure could occur if a significant part of the invention has been published or used [Ij. 

U.S.P.Q. 367 (CCPA 1971). Once the examiner has advanced a reasonable basis for questioning the adequacy of the disclosure, it is incumbent upon applicant to rebut that challenge. For example, an affidavit from a qualified expert could detail the procedures that were followed using the specification disclosure as a guide and the results that were obtained. The scope of the affidavit would depend on the scope of the disclosure and the scope of the claims. 

Safety professionals shonld be aware that the company or organization wonld be reqnired to make reasonable accommodations for any/all known physical or mental limitations of the qnalihed individnal with a disability, unless the employer can demonstrate that the accommodations wonld impose an undue hardship on the business, or that the particnlar disability directly affects the safety and health of that individnal or others. Safety professionals should also be aware that included under this section is the prohibition against the use of qualihcation standards, employment tests, and other selection criteria that can be used to screen out individuals with disabilities, unless the employer can demonstrate that the procedure is directly related to the job funetion. In addition to the modifications to facilities, work schedules, equipment, and training programs, the company or organization is required to initiate an informal interactive (communication) process with the qualified individual to promote voluntary disclosure of his or her specific limitations and restrictions to enable the employer to make appropriate accommodations that will compensate for the limitation. ... 

Change legislation to give hse the authority to direct all local authority health and safety inspection and enforcement activity, in order to ensure that it is consistent and targeted towards the most risky workplaces. Clarify and restate the original intention of the pre-action protocol standard disclosure list and review regulatory provisions that impose strict liability by June 2013 and either qualify them as reasonably practicable where strict liability is not absolutely necessary or amend them to prevent civil liability from attaching to a breach of those provisions. 

As another example of the high bar set by codes of engineering societies, consider this competency provision in the IEEE code which indicates that individuals are to maintain and improve [their] technical competence and to undertake technological tasks for others only if qualified by training or experience, or after full disclosure of pertinent limitations. In similar fashion, the ASME code includes a Fundamental Canon which states Engineers shall continue their professional development throughout their careers and shall provide opportunities for the professional and ethical development of those engineers under their supervision. ... 

---