Patent Office Weighs Patent Secrecy for “Economic Security”

In response to congressional direction, the U.S. Patent and Trademark Office is considering whether to expand the scope of patent secrecy orders — which prohibit the publication of affected patent applications — in order to enhance “economic security” and to protect newly developed inventions against exploitation by foreign competitors.

Currently, patent secrecy orders are applied only to patent applications whose disclosure could be “detrimental to national security” as prescribed by the Invention Secrecy Act of 1951.  At the end of Fiscal Year 2011, there were 5,241 such national security secrecy orders in effect.

But now the Patent Office is weighing the possibility of expanding national security patent secrecy into the “economic security” domain.

“The U.S. Patent and Trademark Office is seeking comments as to whether the United States should identify and bar from publication and issuance certain patent applications as detrimental to the nation’s economic security,” according to a notice that was published in the Federal Register on April 20.

That would be a mistake, I wrote in my own comments submitted to the Patent Office yesterday.

Economic security — which could conceivably implicate all new inventions — is not analogous to the more limited domain of national security-related inventions, “so the use of secrecy orders is inappropriate to protect economic security,” I suggested.

Instead, the existing option for an applicant to request nonpublication of his or her patent application up to the point that the patent is issued is a superior alternative to a mandatory secrecy order, I wrote.  “The inventor is likely to be better qualified than any third party to assess the economic significance of the invention, and is also likely to be best motivated to protect his or her own financial interests.”

“The USPTO has not taken a position” on these questions, the Patent Office said in its April 20 notice, “nor is it predisposed to any particular views.”