Invention Secrecy Act

The Invention Secrecy Act of 1951 (, codified at ) 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. 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. All patents filed within the United States are required to be reviewed, and thousands of ideas and inventions are manually reviewed every year. Any Federal government agency with "classifying powers" may request any patent be restricted under the Invention Secrecy Act.

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. Any appeals are limited to the United States Federal agency that itself restricted the ideas. 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. The Invention Secrecy Act has been criticized for lack of oversight and impacts on future scientific research by inventors, industry, attorneys and academics.

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. 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. 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.

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

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. 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). The decision to classify new inventions under this act is made by "defense agencies" as defined by the President, 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. If government officials determine the idea and invention can pose a threat, it can be restricted from the public with a Secrecy Order. 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.

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. 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. 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. Disclosure of inventions or ideas restricted by a Secrecy Order can lead to arrest and imprisonment for up to two years in Federal prison. If an inventor attempts to release the ideas in a foreign country without authorization, the invention and idea can be held as legally "abandoned." 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.

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. 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. In the four-year window of 2013 to 2017, an average of 117 new inventions per year were restricted with Secrecy Orders. In the same 2013-2017 period of time, an average of 25 Secrecy Orders were reportedly rescinded per year. In 2017, the Federation of American Scientists reported that 5,784 patents were restricted under Secrecy Orders. 5,792 unique patents were under Secrecy Orders as of 2018.

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. 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.

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. All patents filed within the United States are required to be screened for the Invention Secrecy Act. Each year, tens of thousands of new inventions and patent applications are manually reviewed to decide if they should be hidden from the public.

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. The vast majority of patent applications, ideas and inventions have no government affiliation. 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.

Once the application and screening process begins, there are three possible outcomes. 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. 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. In either of these first two scenarios, the government has a six-month window from the patent filing to take any or no action.

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

Types of Secrecy Orders

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

The Secrecy Order notices will command inventors that:

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.
# 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. Types I and II, therefore, typically apply to ideas and concepts already within the United States government domain.
# 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. Type III Secrecy Orders would be used toward inventions by the general public.

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.

Known public examples of restricted technologies

* James Constant – California radar-tracking invention; secrecy order 1969–1971; damages claim denied by the courts in 1982.

* James Greer – Alabama “anti-stealth” tracking concept; secrecy order 2000–2008.

* Robert Gold – Wireless-communications improvement; placed under a secrecy order in 2002.

* Phasorphone inventors – NSA imposed a secrecy order in 1978 on the “Phasorphone”, a voice-obfuscation device; order rescinded after media coverage later that year.

* 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.

Criticism and concerns

Handling and evaluation of ideas and patents

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. The Federation of American Scientists warns that the system “err on the side of caution and impose 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”.

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”. 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.

Impacts on economics and creation of inventions

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. 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. Inventions held under secrecy orders for five years receive, on average, 45 percent fewer citations, and they do not regain that lost impact once the orders are lifted.

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. Because the Act imposes stricter foreign-filing controls on American applicants, U.S. inventors face greater burdens than non-resident inventors. No comprehensive data exist on the broader economic effects of such “compulsory secrecy”, 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.

Declassified Category Review Lists

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. 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. A similar document, ''DoD PATENT SECURITY REVIEW LIST, May 2009'', gives the categories in 2009. The high-level categories from each year that could be forcibly classified are compared below.

See also

* Atomic Energy Act of 1946
* Atomic Energy Act of 1954
* Born secret
* Classified information in the United States
* Defense Office of Prepublication and Security Review
* Export of cryptography from the United States
* Free energy suppression conspiracy theory
* History of United States patent law
* International Traffic in Arms Regulations
* United States patent law

References

External links

* {{USPL, 77, 239, AN ACT To amend the Act relating to preventing the publication of inventions in the national interest, and for other purposes

Title 35, Chapter 17 of the US Code--full text of the Act
from the Legal Information Institute

Invention Secrecy
from the Federation of American Scientists
* Foerstel, Herbert N., ''Secret Science: Federal Control of American Science and Technology''. Westport: Praeger, 1993, pp. 165–172.
* "Invention Secrecy Still Going Strong," ''Secrecy & Government Bulletin'', May 1993, p. 2.
* https://fas.org/blogs/secrecy/2010/10/invention_secrecy_2010/
* [dead link of freethetech.org
2020 archive.org link

82nd United States Congress
1951 in American law
Classified information in the United States
Export and import control
Inventions
Law of the United States
Military economics
Military–industrial complex
Military technology
National security
Privacy of telecommunications
Public sphere
United States federal law
United States federal patent legislation
United States government secrecy