Engineering:Invention Secrecy Act

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Short description: United States national security law
Invention Secrecy Act of 1951
United States Congress
Citation66 Stat. 3
EnactedFebruary 1, 1952
Bill citation(Pub.L. 82–256, 66 Stat. 3, enacted February 1, 1952

The Invention Secrecy Act of 1951 (Pub.L. 82–256, 66 Stat. 3, enacted February 1, 1952, codified at 35 U.S.C. ch. 17) 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 . Each year, tens of thousands of new inventions and patent applications are manually reviewed to decide if they should be hidden from the public.[1]

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 simply sealed from the public as classified.[2][3] Any appeals are limited to the United States Federal agency that itself restricted the ideas.[2] Violation of United States government Secrecy Orders to reveal your ideas may lead to arrest and imprisonment.[1]

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.[4][5] 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.[6][3]

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.[7] Under this Act, defense agencies provide the PTO with a classified list of sensitive technologies in the form of the "Patent Security Category Review List" (PSCRL).[7] The decision to classify new inventions under this act is made by "defense agencies" as defined by the President,[7] These agencies include the Army, Navy, United States Air Force , National Security Agency, Department of Energy, Department of Homeland Security, NASA, but even the Justice Department has played this role.[1] 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.[1]

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.[2] The only way an inventor can avoid the risk of such imposed secrecy is to forgo patent protection.[citation needed] Disclosure of inventions or ideas restricted by a Secrecy Order can lead to arrest and imprisonment.[1]

By the end of fiscal year 1991, the number of patent Secrecy Orders stood at 6,193.[citation needed] Many such orders were imposed on individuals and organizations working without government support.[citation needed] This number shrank for each fiscal year thereafter, until 2002. Since 2002, the number of Secrecy Orders has grown, with 5,002 Secrecy Orders in effect at the end of fiscal year 2007.[citation needed] In the four-year window of 2013 to 2017, an average of 117 new inventions per year were restricted with Secrecy Orders.[2] In the same 2013-2017 period of time, an average of 25 Secrecy Orders were reportedly rescinded per year.[2]

Types of Secrecy Orders

There are three known types of Secrecy Orders which can be enforced, referred to as Types I, II and III[8].

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[8]. 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[8]. Types I and II, therefore, typically apply to ideas and concepts already within the United States government domain[8].

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[8]. Type III Secrecy Orders would be used toward inventions by the general public[8].

Criticism and concerns

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[6]. There is no known data on the economic impacts of "compulsory secrecy" for new ideas under the Invention Secrecy Act[6]. 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[9]. 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[8].

1971 declassified Category Review List

A declassified document from January 1971, "PATENT SECURITY CATEGORY REVIEW LIST", lists the categories of all inventions that the US Patent Office would refer to the Armed Services Patent Advisory Board for consideration of becoming classified under the Invention Secrecy Act[10]

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
  • Computers
  • Concealment, Communications, Countermeasures & Counter-countermeasures
  • Contracts
  • Explosives & Inflammables
  • Explosive Actuating Methods & Means: Fuzes, igniton, Mine Sweeping & Torpedoes
  • Explosive Device Detection Methods & Means
  • Mapping, Charting & Geodesy
  • Materials
  • Meteorology
  • Military Photography
  • Missiles, Munitions and Explosive Devices
  • Navigation Equipment
  • Object Locating Methods & Means
  • Power Supply
  • Propulsion Systems, Propellants, & Fuels
  • Protective Measures
  • Radiology
  • Unique Materials, Devices, or Performance Data and Characteristics
  • Vehicles
  • Weapons, Counter-weapons & Fire control

See also

References

  1. ↑ 1.0 1.1 1.2 1.3 1.4 Shulz, G.W. (2013-04-13). "Government Secrecy Orders on Patents Have Stifled More Than 5,000 Inventions". https://www.wired.com/2013/04/gov-secrecy-orders-on-patents/. 
  2. ↑ 2.0 2.1 2.2 2.3 2.4 Dilawar, Arvind (2018-05-09). "The U.S. Government’s Secret Inventions: Secrecy orders allow U.S. defense agencies to control patents, including those that are privately developed.". https://slate.com/technology/2018/05/the-thousands-of-secret-patents-that-the-u-s-government-refuses-to-make-public.html. 
  3. ↑ 3.0 3.1 Gross, Daniel P. (2019-07-01). "WWII Policy Kept Patents Secret, Slowed Innovation". https://www.nber.org/digest/jul19/wwii-policy-kept-patents-secret-slowed-innovation. 
  4. ↑ Gross, Daniel P. (2019-03-13). "The Consequences of Invention Secrecy: Evidence from the USPTO Patent Secrecy Program in World War II". http://hbswk.hbs.edu/item/the-consequences-of-invention-secrecy-evidence-from-the-uspto-patent-secrecy-program-in-world-war-i. 
  5. ↑ Gross, Daniel P. (2019-03-13). "The Consequences of Invention Secrecy: Evidence from the USPTO Patent Secrecy Program in World War II". https://www.hbs.edu/ris/Publication%20Files/19-090_5225cb00-a67f-4026-98a4-2bc83c6e659f.pdf. 
  6. ↑ 6.0 6.1 6.2 "The hidden costs of securing innovation: The manifold impacts of compulsory invention secrecy". 2022-04-19. https://cepr.org/voxeu/columns/hidden-costs-securing-innovation-manifold-impacts-compulsory-invention-secrecy. 
  7. ↑ 7.0 7.1 7.2 "United States Patent and Trademark Office, 120 Secrecy Orders [R-07.2022"]. 2023-02-16. https://www.uspto.gov/web/offices/pac/mpep/s120.html. 
  8. ↑ 8.0 8.1 8.2 8.3 8.4 8.5 8.6 Saltz, Gregory (2022-02-16). "Patently Absurd: The Invention Secrecy Order System". https://scholarship.law.tamu.edu/cgi/viewcontent.cgi?article=1189&context=journal-of-property-law. 
  9. ↑ de Rassenfosse, Gaétan P.; Pellegrino, Gabriele; Raiteri, Emilio (2023-12-23). "Do patents enable disclosure? Evidence from the invention secrecy act". https://www.sciencedirect.com/science/article/pii/S0167718723001133. 
  10. ↑ "PATENT SECURITY CATEGORY REVIEW LIST". January 1971. https://fas.org/sgp/othergov/invention/pscrl.pdf. 

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