Inquiry into the protection of research results in Sweden

In March 2017, the Swedish Government appointed an investigator to review confidentiality rules on research results at Swedish universities and other higher-education institutions. The aim of the investigator’s work was to propose how to handle research results in future in order to make Sweden an attractive country in which to conduct research. The investigator submitted the assignment to the Swedish Ministry of Education in December 2017.

Amid increasing global competition, Sweden endeavours to be a successful country in the area of innovation and research. However, several situations have been identified in which confidentiality regulations in their present form may pose a hindrance to profiting from research efforts. These situations stem from the provisions governing public documents in Sweden. The principal rule, found in the Freedom of the Press Act (Sw. Tryckfrihetsförordning (1949:105)), is that all documents, images or other records that can be perceived by technical means and received or established and kept by public authorities are public documents that may be requested by Swedish citizens. Furthermore, foreign citizens and companies are also considered to have the right to request public documents. Once the documents are public, it is much harder to profit from an invention, for example as this disqualifies an invention from obtaining patent protection and competitors can learn from the work that has been done.

The rules on the confidentiality of research results have thus been identified as being important in order for Sweden and its higher-education institutions to be considered attractive partners for collaboration. However, the Swedish Government’s standpoint is that research funded by public funds should, as far as possible, be open and available to benefit wider research.

The appointed investigator was therefore assigned to review whether the statute regulating confidentiality in research, the Public Access to Information and Secrecy Act (Sw. Offentlighets- och sekretesslag (2009:400)), needs to be amended or supplemented. The purpose was to evaluate whether the possibilities of classifying research results as confidential prior to publication or protection by intellectual property, should be extended, bearing in mind the important balance between transparency in and the protection of research results. If the investigator were to find that changes are needed, the investigator was to propose necessary modifications of the law.

The investigator was also tasked with reviewing whether clarifications are needed in the statutes concerning the exchange of information prior to an agreement regarding research collaboration as this kind of information could include drafts patents and business plans. Furthermore, applying for research funds may also pose a risk of disclosing important information, and the review was therefore also tasked to focus on whether the process for applying for research funds needed to be amended. There is no clear answer to how the rules covering the application process should be interpreted, and therefore a review was needed to ensure that researchers are not deterred from developing their ideas further.

There are currently other reviews concerning these questions that the investigator was also asked to consider when conducting the review. For example, there is an ongoing investigation regarding research data (Forskningsdatautredningen (U 2016:04)) and a parliamentary bill on cooperation on knowledge (Kunskap i samverkan – för samhällets utmaningar och stärkt konkurrenskraft (prop. 2016/17:50 s. 106 f.)). The latter addresses the importance of transparency in research more thoroughly, taking account of the perspectives and recommendations of the European Union. Other ongoing developments within this area of law that may be of interest are the ‘Directive on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure,’ the General Data Protection Regulation and the Clinical Trials Regulation.

The review is being conducted by an independent investigator (Sw. bokstavsutredare) and the inquiry’s findings have not yet been published by the Swedish Government. We expect the findings to be made public by the summer, however.
Setterwalls will monitor the outcome and developments regarding the protection of research data.