A major area of legal research focuses on how manufacturers of privately developed criminal justice technologies and forensic tools, such as those that utilise trade secret law to shield their underlying algorithms and source code from public and legal scrutiny.[1]

• Trade Secrets vs Patents: Recent judgments in IP law, especially after the U.S. Supreme Court's decision in Alice Corp. v. CLS Bank International[2], have encouraged tech developers to favour trade secrecy over patent protection for algorithm-based software.

• Impact on Defendants: Because companies assert trade secret privilege, criminal defendants often lack the opportunity to cross-examine the accuracy of the tools used to incriminate them, thereby imposing "unconstitutional harms.[3]"

• The "Black Box" Problem: Algorithms in breathalysers and radar guns are often treated as "black boxes," where the proprietary nature of the technology prevents independent verification of bias or technical error.
  

Patenting Innovation in Breathalyser Technology

Research and development in breathalyser technology are frequently protected by patents, particularly as they integrate with the Internet of Things (IoT) and automotive systems.

• IoT Integration: Modern research explores biometric systems that use breath-based alcohol detection to trigger vehicle shutdowns. These innovations are typically patented to ensure a short-term monopoly for the developer.[4]

• Diagnostic Accuracy: Studies have noted that while many personal breathalyser devices carry regulatory approvals (like the BSI Kitemark), these marks often certify engineering quality rather than the diagnostic accuracy required for legal evidence.[5]
  

3. Regulatory Influence on IP Exclusivity

The power of IP rights in these tools is often magnified by government regulation. When a regulatory body (like the Department of Transportation) approves a specific device or process, it becomes significantly harder for competitors to "invent around" those patents (Price, 2016).

• Market Concentration: Regulation can inadvertently strengthen trade secrecy by defining a specific product so narrowly that reverse-engineering a competitor’s secret process becomes the only way to meet regulatory standards (Price, 2016).
  

DPP v Spurrier [2000] RTR 60; (1999) 164 JP 369[6]

This case addressed the use of speed detection devices (radar/laser guns) and the necessity of following manufacturer-set calibration protocols.

• The Issue: The defence argued that because the police had not followed every technical instruction in the manufacturer's manual (which is often protected by copyright and trade secrecy), the evidence was liable to be tossed.

• The Ruling: The court clarified that while instructions must be followed, minor deviations do not automatically invalidate the device's reading unless they affect the device's core functionality.

• IP Connection: This reinforced the authority of the manufacturer’s proprietary documentation. The "Instructions for Use" are treated as the definitive legal standard for the technology’s operation, further insulating the manufacturer's engineering choices from judicial overrule.

  
  

Feature written by Kushraj Singh, Senior Author, The Global IP Magazine.

Email Kushraj: newsdesk@northonsprmarketing.com