From: wdstarr@athena.mit.edu (William December Starr)
Subject: Re: [comp.patents] Patent Secrecy Orders
Organization: Northeastern Law, Class of '93
Date: Sun, 13 Sep 1992 15:18:35 GMT


In article <1992Sep12.070449.14192@ucsu.Colorado.EDU>, 
fcrary@ucsu.Colorado.EDU (Frank Crary) said:

> > I'm a writer on assignment with Technology Review working on a
> > piece about Patent Secrecy Orders, a Cold War invention that
> > allows the DOD to block grants of patents to inventors whose
> > inventions are deemed inimicable to the national security for
> > military rivals to know about or aquire.  [Jyrki Kuoppala]

> As I understand it, the DOD could classify (effectively conficate)
> any patent they wanted. This resulted from one of Truman's exceutive
> orders during the Korean War (like his abortive effort to sieze the
> steal industry). The order was negated (as I recall) sometime in the
> last ten years.

I don't know what other mechanisms exist by which the federal
government can suppress knowledge, but the ability of the government
to do so via patent law is still there.  Check out Title 35 of the
United States Code -- the Patent Act.  Chapter 17, consisting of
sections 181-188, is entitled "Secrecy of Certain Inventions and
Filing Applications in Foreign Country."  Sec. 181, entitled "Secrecy
of certain inventions and withholding of patent," states that:

      Whenever publication or disclosure by the grant of patent on an
   invention in which the Government has a property interest might, in
   the opinion of the head of the interested Government agency, be
   detrimental to the national security, the Commissioner [of the
   Patent and Trademark Office] upon being so notified shall order
   that the invention be kept secret and shall withhold the grant of a
   patent therefor under the conditions set forth hereinafter.

      Whenever publication or disclosure by the grant of patent on an
   invention in which the Government does not have a property interest
   might, in the opinion of the head of the Commissioner, be
   detrimental to the national security, he shall make the application
   for patent in which such invention is disclosed available for
   inspection to the Atomic Energy Commission, the Secretary of
   Defense, and the chief officer of any other department or agency of
   the Government designated by the President as a defense agency of
   the United States.

      Each individual to whom the application is disclosed shall sign
   a dated acknowledgement thereof, which acknowledgement shall be
   entered in the file of the application.  If in the opinion of the
   Atomic Energy Commission, the Secretary of a Defense Department, or
   the chief officer of another department or agency so designated,
   the publication or disclosure of the invention by the granting of a
   patent therefor would be detrimental to the national security, the
   Atomic Energy Commission, the Secretary of a Defense Department, or
   such other chief officer shall notify the Commissioner and the
   Commissioner shall order that the invention be kept secret and
   shall withhold the grant of patent for such period as the national
   interest requires, and notify the applicant thereof.  Upon proper
   showing by the head of the department or agency who caused the
   secrecy order to be issued that the examination of the application
   might jeopardize the national interest, the Commissioner shall
   thereupon maintain the application in a sealed condition and notify
   the applicant thereof.  The owner of an application which has been
   placed under a secrecy order shall have a right to appeal from the
   order to the Secretary of Commerce under rules prescribed by him.

      An invention shall not be ordered kept secret and the grant of a
   patent withheld for a period of more than one year.  The
   Commissioner shall renew the order at the end thereof, or at the
   end of any renewal period, for additional periods of one year upon
   notification by the head of the department or the chief officer of
   the agency who caused the order to be issued that an affirmative
   determination has been made that the national interest continues so
   to require.  An order in effect, or issued, during a time when the
   United States is at war, shall remain in effect for the duration
   of hostilities.  An order in effect, or issued, during a national
   emergency declared by the President shall remain in effect for the
   duration of the national emergency and six months thereafter.  The
   Commissioner may rescind any order upon notification by the heads
   of the departments and the chief officers of the agencies who
   caused the order to be issued that the publication or disclosure of
   the invention is no longer deemed detrimental to the national
   security.

Section 182 holds that if the applicant violates a secrecy order he
has officially "abandoned" his claim to the invention.  "A holding of
abandonment shall constitute forfeiture... of all claims against the
United States based upon such invention."

Section 183, "Right to compensation," essentially says that the patent
applicant has the right "to apply to the head of any department or
agency who caused the order to be issued for compensation for the
damage caused by the order of secrecy and/or for the use of the
invention by the Government."  This sounds almost fair, until you read
the very next sentence: "The right to compensation shall begin on the
date of the first use of the invention by the Government."  In other
words, if the Government uses your invention, you might get some money
for it, but if the Government merely chooses to suppress your
invention, you get bupkis.

And here's the _real_ fun part: Section 187 allows for penalties of
fines of up to $10,000 or imprisonment for up to two years, or both,
for violation of a secrecy order.  Makes you real proud to be an
American, doesn't it?

-- William December Starr <wdstarr@athena.mit.edu>
Newsgroups: alt.society.civil-liberty,alt.privacy,misc.legal,comp.org.eff.talk