Invention secrecy legislation has been a highly debatable topic since its inception in 1917. With the beginning of World War I came valid concerns about the government’s ability to protect national security, and so the invention secrecy doctrine was introduced in an effort to promote public safety and defense against the enemy.
It stated that “whenever during a time when the United States is at war the publication of an invention by the granting of a patent might, in the opinion of the Commissioner of Patents, assist the enemy or endanger the successful prosecution of the war he may order that the invention be kept secret and withhold the grant of a patent until the termination of the war.”
More than two decades later, when World War II came about, the invention secrecy doctrine was renewed, once again authorizing the use of secrecy orders during war time. When the war ended in 1945, the Commissioner of Patents ordered a release of over 6,500 patents from their secret status.
Things changed shortly after, however, with the passing of the Invention Secrecy Act of 1951. Though similar to its predecessors, the 1951 act contained one very important change: the creation of a semi-permanent secrecy order during peacetime. The logic behind such legislation was stated as such: "Inventions useful in war are made and developed during times of peace, and it is important to prevent knowledge of such inventions from being disclosed during times of peace as well as times of war."
Since then, the number of secrecy orders has been steadily rising, reaching over 5,300 in 2012, and while it’s hard to argue that keeping any threats to national security under wraps is a bad thing, some inventors are still leery of the act. In 2002, researcher Robert Gold sought to patent his breakthrough technology that enabled rapid and secure wireless communication over large distances. After reviewing the application, the Department of Defense deemed Gold’s development a national security threat (should it get into the wrong hands) and filed a secrecy order preventing Gold from further commercializing his invention.
After a hard five-year fight, Gold’s attorney succeeded in having the order lifted. However, “by then,” Gold claims, “The window of opportunity, I believed, had really passed.” Others have had similar feelings about the act, claiming that it keeps inventors from reaping any sort of reward for their work. One IP attorney who handled a similar case to Gold’s, makes the point that “If the government [isn’t] going to buy the product from us and [isn’t] going to let us sell it commercially, we basically [have] no value.”
It’s a controversial concept that will most likely continue to drive heated conversations among IP attorneys, inventors and patent reviewers alike. For more information on the act, check out www.fas.org.
Credit: Donnie Turlington, GPS Research Analyst