Patent Secrecy Orders Increase

Posted on February 26, 2011 by Brian Wm. Higgins

     More than 5,100 U.S. patents were subject to at least one Secrecy Order by the end of fiscal year 2010, government statistics obtained through the Freedom of Information Act reveal (source: FAS.org).  The U.S. Patent & Trademark Office issues Secrecy Orders upon recommendation by various U.S. governmental departments,

part of its implementation of the Patent Secrecy Act, 35 U.S.C. Sec. 181 et seq.  The Act requires that if, in the opinion of a government agency, the publication or disclosure of an invention by the publication of an application or by the granting of a patent therefor would be detrimental to the national security, the government agencies notifies the Patent Office and the Commissioner of Patents orders that the invention be kept secret and withholds the publication of the application or the grant of a patent for such period as the national interest requires, and it notifies the patent applicant of the order.  Government agencies that review patent applications under the Secrecy Act include DOD, DOE, NSA, DTSA, and NIH.

     As shown in the graph below, since 2004 the number of Secrecy Orders in effect has risen 5%, to 5,135, due mostly to a sharp decrease in the number of orders rescinded.  Since 2004, 429 existing orders were rescinded, but over 720 new Secrecy Orders were issued by the Patent Office.  The total number of orders in effect now is higher than any year since fiscal year 1996.

   

 

     Current secrecy activity, however, is far from historical highs.  By the end of fiscal year 1991, there were 6,193 Secrecy Order is effect (21% more compared to FY10), and 774 new Secrecy Orders were issued, which is more than the total number of new orders issued in the last seven years combined.
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Law Article: Assertion of Military and State Secrets Privilege by Government in Patent Cases on the Rise

Posted on June 1, 2009 by Brian Wm. Higgins

     In their forthcoming Berkeley Technology Law Journal article (alternative link), visiting University of Maryland Associate Professor of Law Davida Isaacs and University of Kentucky Assistant Professor of National Security Robert Farley discuss the Military and State Secret Privilege and its negative impact on innovation, the discovery process, and government procurement.  As previously noted on this blog, the counties surrounding Washington, D.C., are home to many government contractors, possibly triggering use of the privilege.

     In the article, Isaacs and Farley review the Federal Circuit's Crater Corp. v. Lucent Techs., 423 F.3d 1260 (Fed. Cir. 2005), cert. denied, 547 U.S. 1218 (2006), case in some depth, suggesting that there are some troubling constitutional issues regarding the assertion of the privilege, and arguing that widespread use of the privilege could have a significant negative effect on military innovation and procurement.  On the former point, where the information involved constitutes “trade secrets”, the authors point out that effective quashing of litigation through invocation of the privilege arguably amounts to an unconstitutional taking. On the latter, the authors note that loose use of privilege endangers the intellectual property rights of companies interested in doing business with the military, and in particular of small companies that cannot depend either on their connections with the Pentagon or on an expectation of repeat business for protection. (This is particularly problematic given the stated interest of the Pentagon in pursuing non-traditional defense contractors for innovative technologies.)

     The Military and State Secrets Privilege has been receiving an enormous amount of attention lately, write Isaacs and Farley.  As the article also notes, just a few months ago Congress proposed legislation that is meant to rein in the Government’s use of the privilege, or at least encourage independent judicial consideration of the privilege’s application. But, the authors argue, particularly with regard to the use of intellectual property, this legislation still does not go far enough in ameliorating the negative effects described above.

 

  • Cite:  D. Isaacs and R. Farley, Privilege-Wise and Patent (and Trade Secret)-Foolish?: How the Courts’ Misapplication of the Military and State Secrets Privilege Violates the Constitution and Endangers National Security; 23 Berkeley Tech. L.J. __ (2009) (forthcoming).

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