Number of Secret Inventions Grew Last Year

There were 139 new “secrecy orders” granted on patent applications during Fiscal Year 2013, according to new data released under the Freedom of Information Act by the U.S. Patent and Trademark Office.

Under the Invention Secrecy Act of 1951, secrecy orders may be imposed by government agencies on patent applications if their disclosure would be “detrimental to national security.”

With the new secrecy orders granted over the past year, and the 21 orders that were rescinded, the total number of invention secrecy orders in effect at the end of FY 2013 was 5,445.  This is the highest annual total since FY 1994, when the number reached 5,540.

The latest orders included 21 so-called “John Doe” orders, a term that refers to secrecy orders that are imposed on private inventors whose inventions and patent applications were generated without any government or military support (or “property interest”).  These John Doe orders, which were not identified further, may be particularly vulnerable to a First Amendment challenge as instances of prior restraint.  But no challenge of this kind seems to have been brought before a court.

The new invention secrecy statistics, while impressive in a way, are in the end opaque and unrevealing. There is nothing in the raw numbers that would provide an indication of the validity of the decision to block disclosure of a patent application, whether a secrecy order was appealed or challenged, and what adverse impacts, if any, such an order might have had.

Some inventors say that the Invention Secrecy Act has deprived them of the benefits of their own inventions by forcing them to miss commercial opportunities.  See “Government secrecy orders on patents keep lid on inventions” by G.W. Schulz, The Center for Investigative Reporting, April 16, 2013.

More broadly, national security secrecy, including official use of the state secrets privilege, is an additional source of friction in the patent process, which already can be highly contentious and litigious.

“The government can take whatever technology it wants from a U.S. company and hide behind military secrecy in refusing just compensation,” according to an opinion piece in Aviation Week & Space Technology (“USAF Seized Stealth Advantage, Literally” by Zsolt Rumy, October 7, 2013).

Last week, a bill (HR 3332) to promote judicial review of state secrets claims by the government was reintroduced by Congressman Jerrold Nadler and colleagues in both parties.

“In recent years, the executive branch has used the state secret privilege aggressively, often seeking outright dismissal of entire cases based on the claim that the very subject matter of a case is too secret to be heard by a court,” said Rep. Nadler. “This troubling trend cannot continue.”