Jump to content

Invention Secrecy Act

From Wikipedia, the free encyclopedia

Invention Secrecy Act of 1951
United States Congress
  • An Act to provide for the withholding of certain patents that might be detrimental to the national security, and for other purposes
Citation66 Stat. 3
EnactedFebruary 1, 1952
Bill citationPub. L. 82–256, 66 Stat. 3, enacted February 1, 1952
United States patent law
Legislation
Types of patent claims
Procedures
Other topics
This article is part of a series on the
United States Code
United States Code
flag United States portal

The Invention Secrecy Act of 1951 (Pub. L. 82–256, 66 Stat. 3, enacted February 1, 1952, codified at 35 U.S.C. ch. 17) is a body of United States federal law designed to prevent disclosure of new inventions and technologies that, in the opinion of selected federal agencies, present an alleged threat to the economic stability or national security of the United States.

The Invention Secret Act allows the United States government to classify ideas and patents under "Secrecy Orders", which indefinitely restrict public knowledge of them.[1] The law applies to all inventions in the United States regardless of what the idea or invention is, if a patent is applied for or granted.[2]35 U.S.C. § 181 All patents filed within the United States are required to be reviewed, and thousands of ideas and inventions are manually reviewed every year.[2][3] Any Federal government agency with "classifying powers" may request any patent be restricted under the Invention Secrecy Act.[4]

Ideas restricted by the Invention Secrecy Act's Secrecy Orders can be prohibited from any public disclosure; sales to any party except the United States military industry or exports to other nations can be prohibited; and can even be sealed from the public as classified.[5][6][1] Any appeals are limited to the United States Federal agency that itself restricted the ideas.[5] The United States Patent and Trademark Office has investigated the possibility of restricting new technologies if those new ideas may be disruptive to existing industries.[7] The Invention Secrecy Act has been criticized for lack of oversight and impacts on future scientific research by inventors, industry, attorneys and academics.[1][5][7][8]

World War I and II background

[edit]

The United States government has long sought to control the release of new technologies that might threaten the national defense and economic stability of the country. During World War I, Congress authorized the United States Patent and Trademark Office (PTO) to classify certain defense-related patents. That wartime program lapsed after the Armistice but was re-imposed in October 1941 as the United States prepared to enter World War II. Secrecy orders were intended to last two years beginning 1 July 1940, yet they remained in force for the rest of the war.[9] Through World War II alone, at least 11,000 inventions were submitted for classification review, and other research found that about 8 475 inventions were actually placed under secrecy—roughly 75 percent of all new inventions reviewed during that period, when more than 20,000 total patents were screened.[7][6]

The final version of the 1917 World War I–era statute directed the Commissioner of Patents to restrict inventions when they were:

…detrimental to the public safety or defense, or may assist the enemy or endanger the successful prosecution of the war, [the Commissioner of Patents] may order that the invention be kept secret and withhold the grant of a patent until the end of the war.[10]

Invention Secrecy Act of 1951

[edit]

The Invention Secrecy Act of 1951 made such patent secrecy permanent, though the order to suppress any invention must be renewed each year, except during periods of declared war or national emergency.[11] Under this Act, defense agencies provide the patent office with a classified list of sensitive technologies in the form of the "Patent Security Category Review List" (PSCRL).[11] The decision to classify new inventions under this act is made by "defense agencies" as defined by the President,[11] These agencies include the Army, Navy, Air Force, National Security Agency, Department of Energy, Department of Homeland Security, NASA, but even the Justice Department has played this role.[3] If government officials determine the idea and invention can pose a threat, it can be restricted from the public with a Secrecy Order.[1] Any Federal government agency, not just those associated with the military and intelligence community, may request any patent be restricted under the Invention Secrecy Act if that agency itself has the power to classify data as restricted.[4]

A Secrecy Order bars the award of a patent, orders that the invention be kept secret, restricts the filing of foreign patents, and specifies procedures to prevent disclosure of ideas contained in the application.[5] By law, the government is only required to compensate the inventor of a restricted idea for 75% of its value as deemed by the agency restricting it, and the inventor must demonstrate they suffered damages.[12] However, inventors find it difficult if not impossible to prove suffered harm under the Invention Secrecy Act due to their inability to disclose the invention.[12] Disclosure of inventions or ideas restricted by a Secrecy Order can lead to arrest and imprisonment for up to two years in Federal prison.[3][12] If an inventor attempts to release the ideas in a foreign country without authorization, the invention and idea can be held as legally "abandoned."[12] In the 1958 court case Robinson vs United States, the United States Court of Appeals for the Second Circuit ruled inventors could not sue the government to appeal Secrecy Orders until the secrecy itself was rescinded, citing national security concerns; this standing held through at least 1963.[13]

Each year, tens of thousands of inventions and patent applications are reviewed by hand to decide if they should be allowed to be published or should be hidden from the public.[3] As of 1997, it was reported that five to ten percent of all patents that the American military reviews under the ISA become subject to Secrecy Orders.[14] In the four-year window of 2013 to 2017, an average of 117 new inventions per year were restricted with Secrecy Orders.[5] In the same 2013-2017 period of time, an average of 25 Secrecy Orders were reportedly rescinded per year.[5] In 2017, the Federation of American Scientists reported that 5,784 patents were restricted under Secrecy Orders.[5] 5,792 unique patents were under Secrecy Orders as of 2018.[10]

Through 2012-2020, the United States Patent Office began investigations into expanding application of the Invention Secret Act to have more consideration of economic impacts on American markets from new inventions, if those new ideas may be disruptive to existing industries.[7] Attempts through 2020 to expand the scope of the Invention Secrecy Act in Congress were unsuccessful, attributed to lobbying from groups such as the American Bar Association.[15]

Invention Secrecy Act screening process

[edit]

The law applies to all inventions created in the United States, regardless of their nature or nationality of the creators, despite that the "vast majority" of inventions have no legal or financial stake from the government.[2] All patents filed within the United States are required to be screened for the Invention Secrecy Act.[2] Each year, tens of thousands of new inventions and patent applications are manually reviewed to decide if they should be hidden from the public.[3]

Inventions which received any government funding toward their research and development will be reviewed, beyond any military departments or intelligence agencies, by the segment of the United States government that had a funding and research stake in them.[2] The vast majority of patent applications, ideas and inventions have no government affiliation.[2] For those ideas and inventions from the general public, the Commissioner for Patents of the United States Patent and Trademark Office makes any initial decision whether or not the idea will endanger national security.[2]

Once the application and screening process begins, there are three possible outcomes.[2] The first outcome is that the patent and an associated foreign patent filing license may simply be granted, and the Invention Secrecy Act would not bind or restrict that given idea.[2] The second option is that the government may simply do nothing, which allows the creators of the idea and invention to pursue it fully in United States and foreign markets.[2] In either of these first two scenarios, the government has a six-month window from the patent filing to take any or no action.[2]

The third and last option is that a Secrecy Order is compelled on the idea and invention.[2] The creators are then forbidden from sharing, disclosing, discussing, developing, selling or marketing the ideas within the United States or in foreign nations.[2]

Types of Secrecy Orders

[edit]
Timeline of patents issued year over year.[16]

There are three known types of Secrecy Orders which can be enforced, referred to as Types I, II and III.[1] Violation of United States government Secrecy Orders to reveal your ideas may lead to arrest and imprisonment.[3]

The Secrecy Order notices will command inventors that:[12]

"the subject matter or any material information relevant to this application, including unpublished details of the invention, shall not be published or disclosed to any person not aware of the invention prior to the date of this order, including any employee of the principals."[12]

The three known types of Secrecy Orders are:

  1. Type I Secrecy Orders, referred to as "Secrecy Order and Permit for Foreign Filing in Certain Countries", typically are used to restrict ideas or materials derived from government funding which may not be themselves secret or classified prior to receiving a Secrecy Order under the Invention Secrecy Act, but may be already under some manner of restrictions from either or both of Export Administration Regulations and International Traffic in Arms Regulations.[1]
  2. Type II Secrecy Orders, also known as "Secrecy Order and Permit for Disclosing Classified Information", apply to ideas and inventions that may already be in part composed of classified concepts and technologies, or that can be, and that were submitted for patent review by Americans who already hold some manner of United States Department of Defense security agreements.[1] Types I and II, therefore, typically apply to ideas and concepts already within the United States government domain.[1]
  3. Type III Secrecy Orders, called a "General Secrecy Order", are used as a "catch-all" to restrict any ideas, technologies or inventions that would not be covered by the government affiliation involved with Type I and Type II Secrecy Orders.[1] Type III Secrecy Orders would be used toward inventions by the general public.[1]

All "security review" files related to "the security review of patent applications, placing of applications under secrecy, modification of secrecy orders, and withdrawing of applications from secrecy" are required to be destroyed ten years after a Secrecy Order is rescinded.[17]

Known public examples of restricted technologies

[edit]
  • James Constant – California radar-tracking invention; secrecy order 1969–1971; damages claim denied by the courts in 1982.[18]
  • James Greer – Alabama “anti-stealth” tracking concept; secrecy order 2000–2008.[18]
  • Robert Gold – Wireless-communications improvement; placed under a secrecy order in 2002.[18]
  • Phasorphone inventors – NSA imposed a secrecy order in 1978 on the “Phasorphone”, a voice-obfuscation device; order rescinded after media coverage later that year.[19]
  • Budimir and Desanka Damnjanovic – Anti-heat-seeking missile counter-measure (“spraying liquid from the back of an airplane”); secrecy order in 2009; five-year appeal failed; filed a First- and Fifth-Amendment lawsuit in 2014; Air Force lifted both orders in a pre-trial settlement.[20][5]

Criticism and concerns

[edit]

Handling and evaluation of ideas and patents

[edit]

Critics argue that the Invention Secrecy Act lacks published standards for deciding which inventions may be placed under secrecy orders and provides no clear safeguards for privacy or intellectual-property rights.[1][5] The Federation of American Scientists warns that the system “err[s] on the side of caution and impose[s] secrecy orders on patents that present even the slightest threats”, while at worst “bureaucrats mindlessly impose secrecy orders and then forget about them, because that’s simpler than carefully considering the implications of new technologies becoming public”.[5]

Historian Alex Wellerstein has said that “the government’s legal basis for keeping private information secret is very vulnerable”, adding that officials manage secrecy orders to avoid Federal courts “creating precedent around the core constitutional issue”.[20] Thomas G. Dignan Jr., writing in the Michigan Law Review, argued that inventors who disclose ideas to the government “effectively lose almost all avenues of appeal” once a secrecy order is imposed.[13]

Impacts on economics and creation of inventions

[edit]

Multiple studies conclude that the Invention Secrecy Act reduces the overall number of new inventions disclosed, because scientific and technical progress typically builds on openly published prior work.[8] One analysis found that keeping an invention secret for only a few months makes it about 15 percent less likely to be cited in later research and development, showing that even short-term restrictions can inhibit follow-on innovation.[15] Inventions held under secrecy orders for five years receive, on average, 45 percent fewer citations,[8] and they do not regain that lost impact once the orders are lifted.[8]

Eric B. Chen of the University of Texas School of Law reported that between 2000 and 2004 only 53 percent of USPTO patents were issued to U.S. residents.[21] Because the Act imposes stricter foreign-filing controls on American applicants, U.S. inventors face greater burdens than non-resident inventors.[21] No comprehensive data exist on the broader economic effects of such “compulsory secrecy”,[7] although James W. Parrett Jr. of William & Mary Law School has argued that limited secrecy can be justified for emerging areas such as biotechnology patents, where disclosure risks remain poorly understood.[22]

Declassified Category Review Lists

[edit]

The Federation of American Scientists and Steven Aftergood obtained Category Review lists via Freedom of Information Act requests that had become declassified, detailing categories of inventions and concepts that the United States government may classify under the Invention Secrecy Act.[23][24] A declassified document from January 1971, PATENT SECURITY CATEGORY REVIEW LIST, lists the invention categories that the United States Patent Office referred to the Armed Services Patent Advisory Board for possible classification.[23] A similar document, DoD PATENT SECURITY REVIEW LIST, May 2009, gives the categories in 2009.[24] The high-level categories from each year that could be forcibly classified are compared below.

Bar chart from the ISOO 2011 annual report showing yearly counts of derivative classification actions from 1996 to 2011.
Derivative classification activity 1996–2011
Declassified category review lists, 1971 and 2009
1971 declassified category review list[23] 2009 declassified category review list[24]
Amplifiers, recorders, sensors and electronic tubes Amplifiers, recorders, sensors, & electronic tubes
Computers Computers
Concealment, communications, countermeasures & counter-countermeasures Concealment, communications, countermeasures & counter-countermeasures
Contracts Contracts
Explosives & inflammables Explosives & inflammables
Explosive actuating methods & means: fuzes, ignition, mine sweeping & torpedoes Explosive actuating methods & means: fuses, igniters, mine sweeping & torpedoes
Explosive device detection methods & means Explosive device detection methods & means
Mapping, charting & geodesy Mapping, charting & geodesy
Materials Materials
Meteorology Meteorology
Military photography Military photography
Miscellaneous Miscellaneous
Missiles, munitions and explosive devices Missiles, munitions and explosive devices
Navigation equipment Navigation equipment
Object locating methods & means Object locating methods & means
Power supply Power supply
Propulsion systems, propellants, & fuels Propulsion systems, propellants, & fuels
Protective measures Protective measures
Radiology Radiology
Unique materials, devices, or performance data and characteristics Unique materials, devices, or performance data & characteristics
Vehicles Vehicles
Weapons, counter-weapons & fire control Weapons, counter-weapons & fire control

See also

[edit]

References

[edit]

Public Domain This article incorporates public domain material from websites or documents of the United States government.

  1. ^ a b c d e f g h i j k Saltz, Gregory (February 16, 2022). "Patently Absurd: The Invention Secrecy Order System". Texas A&M University School of Law. Archived from the original on May 19, 2022. Retrieved January 31, 2024.
  2. ^ a b c d e f g h i j k l m Locke, Scott (April 15, 2019). "The Invention Secrecy Act: The USPTO as a Gatekeeper of National Security". Indiana University Maurer School of Law. 8 (1). Archived from the original on August 2, 2019. Retrieved February 7, 2024.
  3. ^ a b c d e f Shulz, G.W. (April 13, 2013). "Government Secrecy Orders on Patents Have Stifled More Than 5,000 Inventions". Wired. Archived from the original on April 21, 2014. Retrieved January 30, 2024.
  4. ^ a b Sanders, Sylvia (January 1, 1981). "Data Privacy: What Washington Doesn't Want You to Know". Reason. Archived from the original on October 20, 2020. Retrieved February 19, 2024.
  5. ^ a b c d e f g h i j Dilawar, Arvind (May 9, 2018). "The U.S. Government's Secret Inventions: Secrecy orders allow U.S. defense agencies to control patents, including those that are privately developed". Slate. Archived from the original on May 9, 2018. Retrieved January 31, 2024.
  6. ^ a b Gross, Daniel P. (July 1, 2019). "WWII Policy Kept Patents Secret, Slowed Innovation". National Bureau of Economic Research. Archived from the original on June 6, 2023. Retrieved January 30, 2024.
  7. ^ a b c d e "The hidden costs of securing innovation: The manifold impacts of compulsory invention secrecy". Centre for Economic Policy Research. April 19, 2022. Archived from the original on September 26, 2022. Retrieved January 31, 2024.
  8. ^ a b c d de Rassenfosse, Gaétan P.; Pellegrino, Gabriele; Raiteri, Emilio (2024). "Do patents enable disclosure? Evidence from the invention secrecy act". International Journal of Industrial Organization. 92. doi:10.1016/j.ijindorg.2023.103044. Archived from the original on January 31, 2024. Retrieved January 31, 2024.
  9. ^ Gross, Daniel P. (March 13, 2019). "The Consequences of Invention Secrecy: Evidence from the USPTO Patent Secrecy Program in World War II" (PDF). HBS Working Knowledge. Archived (PDF) from the original on June 28, 2023. Retrieved January 31, 2024.
  10. ^ a b McGovern, Geoffrey; McCollester, Maria; Ligor, Douglas C.; Tao Li, Sheng; Yeung, Douglas; Kupe, Laura (September 19, 2019). "The Role of Intellectual Property in U.S. Homeland Security". RAND Corporation. Archived (PDF) from the original on September 19, 2019. Retrieved February 5, 2024.
  11. ^ a b c "United States Patent and Trademark Office, 120 Secrecy Orders [R-07.2022]". United States Patent and Trademark Office. February 16, 2023. Archived from the original on January 30, 2024. Retrieved January 31, 2024.
  12. ^ a b c d e f Maunea, Jaime (June 1, 2012). "Patent Secrecy Orders: Fairness Issues In Application of Invention Secrecy Act" (PDF). Texas Intellectual Property Law Journal. Archived (PDF) from the original on August 19, 2016. Retrieved February 6, 2024.
  13. ^ a b Dignan Jr., Thomas G. (January 1, 1963). "Patents-Procedure-Applicability of Invention Secrecy Act Where Government Use of Invention is Authorized". Michigan Law Review. Archived from the original on October 25, 2020. Retrieved February 20, 2024.
  14. ^ Lee, Sabing H. (1997). "Protecting the private inventor under the peacetime provisions of the Invention Secrecy Act". Berkeley Technology Law Journal. 12 (2): 345–411. doi:10.15779/Z38RQ3T. Archived (PDF) from the original on September 10, 2015.
  15. ^ a b Senz, Kristen (January 13, 2020). "Do National Security Secrets Hold Back National Innovation?". Forbes, Harvard Business School. Archived from the original on January 13, 2020. Retrieved February 19, 2024.
  16. ^ "U.S. Patent Activity / Calendar Years 1790 to the Present". U.S. Patent and Trademark Office (PTO). 2021. Archived from the original on April 29, 2023.
  17. ^ "DMA RECORDS MANAGEMENT PROGRAM" (PDF). National Geospatial-Intelligence Agency, formerly Defense Mapping Agency, hosted at the National Archives and Records Administration. April 21, 1982. Archived (PDF) from the original on July 20, 2017. Retrieved February 8, 2024.
  18. ^ a b c Schulz, G.W. (April 13, 2013). "Government secrecy orders on patents keep lid on inventions". The Center for Investigative Reporting. Archived from the original on September 18, 2015. Retrieved February 20, 2024.
  19. ^ Sanders, Sylvia (January 1, 1982). "Patent Secrecy Orders: The Unconstitutionality of Interference in Civilian Cryptography under Present Procedures". Santa Clara University School of Law. Archived from the original on March 18, 2020. Retrieved February 20, 2024.
  20. ^ a b Brustein, Joshua (June 8, 2016). "Government secrecy orders on patents keep lid on inventions". Bloomberg News. Archived from the original on June 9, 2016. Retrieved February 20, 2024.
  21. ^ a b Chen, Eric, B. (March 1, 2005). "Technology Outpacing The Law: The Invention Secrecy Act of 1951 And The Outsourcing of U.S. Patent Application Drafting" (PDF). University of Texas School of Law. Texas Intellectual Property Law Journal. Archived (PDF) from the original on January 30, 2024. Retrieved August 27, 2024.{{cite web}}: CS1 maint: multiple names: authors list (link)
  22. ^ Parrett Jr., James W. (June 8, 2016). "A Proactive Solution to the Inherent Dangers of Biotechnology: Using the Invention Secrecy Act to Restrict Disclosure of Threatening Biotechnology Patents". William & Mary Law School. Archived from the original on March 19, 2020. Retrieved February 20, 2024.
  23. ^ a b c "Armed Services Patent Advisory Board - Patent Security Category Review List (1971)" (PDF). Federation of American Scientists. January 1971. Archived (PDF) from the original on September 4, 2021. Retrieved January 30, 2024.
  24. ^ a b c "DoD PATENT SECURITY REVIEW LIST, May 2009" (PDF). Federation of American Scientists. January 1971. Archived (PDF) from the original on August 27, 2021. Retrieved August 30, 2024.
[edit]
Retrieved from "https://en.wikipedia.org/w/index.php?title=Invention_Secrecy_Act&oldid=1290295644"