Invention Secrecy on the Rise

During fiscal year 2011, there were 143 new secrecy orders imposed on patent applications under the Invention Secrecy Act of 1951, the U.S. Patent and Trademark Office reported this week.  This represents an increase of 66% over the year before, and it is the highest number of new secrecy orders in a single year since 1998.

The Invention Secrecy Act authorizes the government to block the disclosure of a patent application if it contains information that might be “detrimental to the national security.”  Remarkably, this secrecy authority extends even to privately-generated inventions that the government does not own or control.

According to USPTO statistics obtained by the Federation of American Scientists under the Freedom of Information Act, a total of 5,241 patent secrecy orders were in effect at the end of FY 2011, including both new secrecy orders and those from previous years that had been renewed.  This is the highest annual total since 1995.

An explanation for the increase in secrecy orders was not reported.  Nor do the statistics themselves include anything like a “figure of merit” that would confirm their validity or their legitimacy.

The use of secrecy orders has sometimes been questioned, particularly when they extend to inventions that are not clearly limited to military or other national security applications.  Forty years ago, government agencies directed that advanced renewable energy technologies should be reviewed for possible restriction under the Invention Secrecy Act.  These included photovoltaics that were more than 20% efficient and energy conversion systems with efficiencies “in excess of 70-80%.”  (“Invention Secrecy Still Going Strong,” Secrecy News, October 21, 2010)

To be “detrimental to national security” — which is the threshold for a secrecy order under the Invention Secrecy Act — is a lower standard than to cause “damage to national security,” which is the criterion for national security classification.

Government reviewers may recommend imposing a secrecy order on a patent application in which the government has a “property interest” (i.e. the government owns or supported the development of the invention) whenever disclosure of the application “might be detrimental to national security,” according to a 2010 directive from the Department of Defense.  However, if the government does not have a property interest in the invention, then reviewers can only impose a secrecy order if disclosure “would be detrimental to national security,” a more demanding standard.   But the term “detrimental” was not further defined and the precise scope of the review process is not publicly known.

It has been years since Congress conducted investigative oversight of the invention secrecy program.  An informative series of hearings entitled “The Government’s Classification of Private Ideas” was held by the House Committee on Government Operations in 1980.  Extensive excerpts from the published hearing volume are posted here.