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 created in the United States regardless of what the idea or invention is.[2] 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
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. This initial effort lasted only for the duration of that war but was reimposed in October 1941 in anticipation of the entry of the United States into World War II. Secrecy Orders were initially intended to remain effective for two years, beginning on July 1, 1940, but were later extended for the duration of the second World War.[9]
Through World War II alone, at least 11,000 inventions were reported for classification review by the United States Government, and other analysis found that in the WWII era at least 8,475 inventions were forcibly classified, accounting for 75% of all new inventions in that time period, where over 20,000 total patents were reviewed for possible restrictions.[7][6]
The final version of the 1917 WW1-era law ordered ideas should be restricted if:[10]
...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. (Pub. L. 65-80, 1917)[10]
Invention Secrecy Act of 1951
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] 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] 5,792 unique patents were placed under Secrecy Orders in 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.[14]
Invention Secrecy Act screening process
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]
Known public examples of restricted technologies
James Constant of California was restricted by Secrecy Order from 1969 to 1971 for his advancements in radar systems to track objects ranging from shipping containers to parts on an industrial assembly line, and later in 1982 was denied any damages by courts.[15] James Greer of Alabama was bound by a Secrecy Order from 2000 to 2008, for an invention that could have allowed development of "anti-stealth" tracking systems.[15] In 2002, inventor Robert Gold saw his idea for improvements in wireless communications restricted by a Secrecy Order.[15] Some inventors have resisted in public their Secrecy Orders: in 1978, the National Security Agency restricted an invention called the "Phasorphone", which allowed people to digitally alter and obfuscate their voices on telephone calls for privacy from government surveillance.[16] The Phasorphone inventors took their opposition to the media, and months later the NSA ultimately rescinded the order.[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:
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]
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]
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.[18]
Criticism and concerns
Handling and evaluation of ideas and patents
The Invention Secrecy Act has been criticized for having no defined standards or regulatory framework of what sorts of ideas may be sealed under Secrecy Orders and the lack of any safeguards for privacy or intellectual property rights.[1] The Federation of American Scientists stated that the restrictions at best “err on the side of caution and impose secrecy orders on patents that present even the slightest threats,” and 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 criticized the Invention Secrecy Act, saying, "The government’s legal basis for keeping private information secret is very vulnerable," and that the government carefully manages Secrecy Orders to avoid the possibility of Federal courts "creating precedent around the core constitutional issue".[19]
Impacts on economics and creation of inventions
There is no known data on the economic impacts of "compulsory secrecy" for new ideas under the Invention Secrecy Act.[7]
Studies have concluded that the Invention Secrecy Act leads to an overall reduction in the number of new inventions being presented, due to the nature of how inventions and sciences build upon prior discoveries.[8] Other studies have shown that being forced secret for a scale of months can cause an invention or idea to be 15% less likely to be cited by later research and development, demonstrating that even a limited restriction has negative impacts for inventors and the sciences.[14] Inventions forced into Secrecy Orders even up to just five years will receive on average 45% less future citations.[8] Once an invention has been made secret, it does not recover from this negative impact over time even when the Secrecy Orders are lifted.[8]
Meanwhile, James W. Parrett Jr. of the William & Mary Law School has argued that the Invention Secrecy Act can have value for certain areas such as around biotechnology patents, due to their novel and often still unexplored nature.[20]
1971 declassified Category Review List
Derivative classification activity 1996–2011
A declassified document from January 1971, "PATENT SECURITY CATEGORY REVIEW LIST", lists the categories of all inventions that the United States Patent Office would refer to the Armed Services Patent Advisory Board for consideration of becoming classified under the Invention Secrecy Act.[21]
The high-level categories of inventions from 1971 which can be forcibly classified are listed as the following, and each section includes an expansive spectrum of topics beneath each:
Amplifiers, Recorders, Sensors and Electronic Tubes
^"PATENT SECURITY CATEGORY REVIEW LIST"(PDF). Armed Services Patent Advisory Board - Patent Security Category Review List (1971). January 1971. Archived(PDF) from the original on September 4, 2021. Retrieved January 30, 2024.
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