Patents gagged in the name of national security
* 09 July 2005 by Paul Marks
* Magazine issue 2507
AFTER years of hard work, you have finally perfected your greatest invention. You file for a patent, and then sit back to wait for the money to roll in.
Except that it doesn't. Instead, you get a curt letter from a security official at the patent office, informing you that your patent will not see the light of day any time soon. The technology you have designed is a threat to national security and has been designated a state secret. Tell anyone, or try to patent the idea in another country, and you face two years in jail. Welcome to the murky world of black patents.
Secrecy orders can be slapped on private inventions in 13 of the 26 member countries of NATO, as well as in Australia and New Zealand. And the trend, from US figures at least, appears to be upwards: while 18 private American citizens had their inventions gagged in 1999, by last year the figure had risen to 61 (see Chart). Including patents filed by companies such as defence contractors, 4885 secrecy orders are now in place in the US compared with 4741 in 2001.
The terror attacks on the World Trade Center and the Pentagon have helped to fuel patent prohibitions in the US, says Don Hajec, a director at the US Patent and Trademark Office in Alexandria, Virginia, who is responsible for handling so called "secure patent applications". "9/11 generated ideas on the anti-terror front as inventors do tend to react to events," he says. "But it also raised the level of awareness and concern about invention secrecy."
In the UK, figures are vague: of the 30,000 patent applications sent to the UK Patent Office in Cardiff every year, 600 to 1500 are pulled aside for closer scrutiny by military experts. "We don't reveal how many of those we prohibit from dissemination," says Patent Office information officer Jeremy Philpott. However, on the orders of the Ministry of Defence, the UKPO declassifies about 100 patents each year - typically a decade or two after they were filed.
Just what does patent-gagging legislation cover? The US Invention Secrecy Act of 1951 says that whenever the "publication or disclosure of the invention by the granting of a patent would be detrimental to the national security, the Commissioner of Patents shall order that the invention be kept secret". The UK Patents Act of 2004 runs along similar lines. In both cases, penalties for infringement include two years' imprisonment and/or heavy fines.
In the UK, patent officers identify potential black patents by checking every filing for innovations the military would want to keep under wraps. "A small examining team of Patent Office staff handles all the secure applications and they work in a secure section," says Philpott. They are not, he stresses, employees of the government security services.
Philpott says that of all the applications coming their way, there will be a small number that stand out in the early stages as having a potential impact on national security. "Certain technologies like camouflage and radar reflectors, perhaps useful in stealth technology, might pique our interest," he explains. "But that doesn't mean that every application that ever relates to those things will be pulled."
In the US, most applications that go for secrecy checks are filed by government defence agencies and contractors. "They hit our door marked as being under secrecy orders and go straight to private review," says Hajec.
But for the rest, including those filed by private inventors, the USPTO uses software to initially sift electronic scans of paper patent filings. The software compares the text with a list of military-critical hit terms, and any documents it identifies are sent to a team of expert human screeners. "The hit list includes terms that should pick out bioweapons or nuclear technologies, for instance," says Hajec.
The screeners, patent examiners with military knowledge, then decide whether the filing should be sent to the Pentagon's Defense Technology Security Administration in Washington DC, where army, navy and air force specialists make the final decision on whether a secrecy order should be placed on the invention.
As an example, Hajec highlights a recent case where a private inventor narrowly escaped a secrecy order. The inventor had designed a device that electronically raised pivotable spikes buried in a road to burst vehicle tyres. "While it was invented to stop people leaving a parking lot without paying, it would also be useful in stopping a car bomber approaching an embassy," says Hajec. "It was decided not to impose an order because it had wider applications than anti-terror ones. We don't want to stifle innovation."
But what if somebody designed a new way to disperse pesticide from a crop-spraying plane? Would its potential to spread a bioweapon such as anthrax attract a secrecy order? Philpott won't say. "How that judgement is exercised isn't really a suitable topic of conversation. The point is we have guidance and we apply it accordingly."
Classified patents go through a very similar process to ordinary patents. Patent examiners still search all previous patents looking for prior art to determine whether a patent is indeed novel. The difference is that an official patent is not granted on sensitive inventions until the secrecy order has been lifted, which could be many years later. By then, technological innovation may have advanced so far that the patent is worthless financially. "I know this has happened to some inventors," says David Wardell, chairman of the UK Institute of Patentees and Inventors, based in Kingston upon Thames, Surrey. "Unfortunately most of the stories are probably apocryphal because it becomes an official secret once the order is imposed and they cannot then talk about it to anyone."
And when such a patent is declassified, it is done quietly. The patent is published as normal, the only clue being a large discrepancy, usually of some decades, between the filing date and the publication date. On ordinary patents, the two dates are usually less than two years apart.
The defence ministry didn't take Frank Whittle's jet engine idea seriously. The patents were published and the Nazis got hold of them
