Invention Secrecy Hits Recent High

Last year the number of patent applications that were subject to a “secrecy order” under the Invention Secrecy Act of 1951 was the highest that it has been in more than two decades, according to data obtained from the US Patent and Trademark Office.

Whenever disclosure of a new invention is deemed to be “detrimental to national security,” a secrecy order may be imposed on the patent application, preventing its public disclosure and blocking issuance of the patent. Most affected inventions seem to involve technologies that have military uses. But the current criteria that are used to make the determination have not been released, so the actual scope of invention secrecy is not publicly known.

At the end of FY 2018 (September 30, 2018), there were 5,792 secrecy orders in effect, up slightly from 5,784 the year before.

There were 85 new orders imposed, and 77 existing orders that were rescinded. The remaining orders, which were originally imposed in previous years, were renewed. Among the new orders, there were 43 that were imposed on private inventors (i.e., not government employees or contractors). These so-called “John Doe” secrecy orders are a constitutionally suspect category, since they involve prior restraint on the speech of a private citizen or business.

The new total of 5,792 secrecy orders in effect is the highest since 1993, when the total was 5,909.

When a secrecy order is rescinded — years or sometimes decades after it was imposed — the invention may finally be patented.

When asked whether any of the inventions that were released from a secrecy order in 2018 had subsequently been patented, the US Patent and Trademark Office said it had no record of such patents.

See, relatedly, “The U.S. Government’s Secret Inventions” by Arvind Dilawar, Slate, May 9, 2018.