The government is classifying more innovations as secret in the name of national security.
Editor’s note: This story appeared in the July 2009 issue.
By B. Collins
Irving “Ward” Figge and Phillip Graham worked for Aerojet-General Corp. when they filed their patent application on July 21, 1998.
For historical reference, that was about the time the late Charlton Heston had become president of the National Rifle Association, biologists had sequenced the syphilis genome and Monica Lewinsky had handed over her infamous stained blue dress to investigators probing the Clinton sex scandal.
The U.S. Patent and Trademark Office granted Figge and Graham the patent on Feb. 3, 2009. A decade and some change is a long time to wait for a patent, even by USPTO standards. What was the hold up?
The patent dealt with a way to make a rocket motor case using plank sections, which would let propellant vent or escape “in the event of propellant ignition during cook-off.” Government officials believed publicly disclosing the method through the patent process could compromise national security. So the patent application became subject to the Invention Secrecy Act of 1951.
The Act prevents disclosure of new inventions and technologies that, in the opinion of defense, intelligence or other informed agencies, pose a threat to the nation. The Act serves as the Gitmo for patents – a holding place where applications disappear, at least for awhile.
National security and intellectual property officially collided during World War I, when Congress authorized the USPTO to classify certain defense-related patents. No need to let Kaiser Wilhelm and his U-Boat boys know what we were up to, after all.
Patent secrecy enforcement lasted the duration of that war and then lapsed. It resumed in October 1941, on the eve America’s entry into WWII. The Invention Secrecy Act of 1951, when the Cold War started to simmer in earnest, made patent secrecy a permanent part of U.S. law.
“War always generates people’s creativity to protect the nation,” says Mike Carone, supervisory patent examiner at the USPTO. He notes that since the 9/11 terrorist attacks, there has been “more awareness of the need for secrecy orders.”
There were 5,023 patents under secrecy orders in 2008, up from 4,741 in 2000. The vast majority of these were for technologies developed by or for various military branches.
Although the 2008 figures were higher than in previous years, it remains to be seen whether an increase of patent secrecy orders is a long-term trend. The early ’90s saw greater numbers of secrecy orders. The 18-year high-water mark of 6,193 occurred in 1991 – the year the first Gulf War ended.
There are several types of secrecy orders, ranging in severity from simple prohibitions on export (but allowing other disclosure for legitimate business purposes) up to classification, requiring secure storage of the application and prohibition of all disclosure.
A full secrecy order bars the award of a patent, requires that the invention be kept secret, restricts the filing of foreign patents and specifies procedures to prevent disclosure of ideas contained in the application.
The only way an inventor can avoid the risk of such imposed secrecy is to not apply for a patent.
Of course, any go-it-alone attempt to commercialize a technology that could put the nation at risk undoubtedly would draw the irate attention of various government agencies.
The government can impose these restrictions even if the application is generated and entirely owned by a private individual or company without government sponsorship or support.
Defense contractors working for the government expect their patents to get flagged as secret. Sensitive patent applications also come from smaller, independent companies or so-called John Doe inventors.
Of the 43,877 patents that fell under secrecy orders this decade, just 351 were from John Does.
The USPTO screens all patent applications. In the case of patents that may be subject to the Secrecy Act, the office asks for guidance from defense or other relevant agencies.
“I don’t know of any time when we didn’t take the recommendation” of one of the agencies, Carone says.
That’s a sore spot with Steven Aftergood, director of the Federation of American Scientists’ Project on Government Secrecy.
“We recognize that secrecy orders may be appropriate in some instances,” he says, “but… government agencies tend to withhold more information than is justified.”
The federation has filed Freedom of Information Act requests to compel the USPTO to release the patents that the office has removed from secrecy orders.
“In other areas of national security,” Aftergood says in the studious tone of a professor, “one does find credible complaints that secrecy was used without justification or to evade public controversy.”
That said, he’s unaware that the Secrecy Act has ever shut down or otherwise derailed an inventor.
“It may be that there is no problem,” he adds. “I just don’t know.”
As for the two rocket motor case inventors from Aerojet, they’ve since retired. However, company spokesman Gerald Newman says the company continues to “play” with the technology. The rocket motor case Figge and Graham developed relieves pressure during ignition and theoretically could find a use for smaller, tactical missiles, particularly aboard Navy ships where fire safety is a major concern.
“But,” Newman adds, “it’s never been something we’ve put into production.”