Hi, and welcome back to Legal Geek. This week, we cover the topic of secret or classified patents, which is a field of patent applications most people do not realize even exists.
Back in the days of World War I and II, Congress authorized the Patent Office to classify certain patent applications related to defense technologies. As the Cold War ramped up in 1952, this process became permanent law when the Invention Secrecy Act was enacted. The Act prevents disclosure of new inventions and technologies that, in the opinion of defense, intelligence, or other informed government agencies, pose a threat to national security.
There are multiple levels of secrecy order that the Patent Office can apply under the Act. On the lighter side, an invention may be prohibited only from export but still allowed to be disclosed to third parties for legitimate business purposes. This ranges all the way up to a full secrecy order, which bars the issuance of the patent, requires secure and secret storage of the invention, and restricts foreign filings and any public disclosures.
While these orders are often applied to government and military contractors based on the technologies they develop, regular citizens have also fallen into this purgatory of the patent world when their inventions are deemed critical to national security. The number of patent applications being held in secret is typically around 4 to 7 thousand, although the number is expected to grow alongside the growth in overall patent filings. In some circumstances, like a patent granted on a rocket motor technology in 2009 but filed in 1998, the application can be delayed for 10 years or more. And there's nothing an applicant can do about it, in reality.
The primary criticism of this secrecy order practice of the USPTO is that there is very little oversight of the agencies giving guidance to the Patent Office on whether an invention truly meets the definition of posing a threat to national security. Furthermore, the Patent Office will not even share the criteria used for determining whether to consider a secrecy order, deeming this as protected under national security as well.
Indeed, the government tends to be over inclusive when it comes to protecting national security. For example, solar panel technology was almost subject to secrecy orders in the 1970s, but these have obvious non-military useful applications. More recently, a patent issued on a cryptograph in 2000 for a patent filed in 1936, at which point the technology for manual decoding of messages was decades out of date technologically.
The Bottom Line is, the secret patent system does serve a purpose in certain limited circumstances and technological fields, but the potential downside for applicants left in purgatory or on hold is staggering. It's unlikely that this practice will go away, but legal challenges are happening to try and open up more visibility on the process. The whole point of patents is to promote innovation by disclosing inventions to all, so it's ironic that this system also shuffles some inventions into the darkness, sometimes for many years or even decades.
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