Federation of American Scientists
October 22, 2009
By Steven Aftergood The total number of invention secrecy orders that the U.S. government imposed on patent applications rose again this year, reaching 5,081 by the end of last month, the highest figure since 1996.
Under the Invention Secrecy Act of 1951, U.S. government agencies may restrict the disclosure of a patent application whenever its publication is deemed “detrimental to the national security.” In Fiscal Year 2009, 103 new secrecy orders were issued, while 45 existing orders were rescinded. The overall number of orders in effect increased by about 1% over the year before, according to statistics from the U.S. Patent and Trademark Office that were released to Secrecy News under the Freedom of Information Act.
The most vexing secrecy orders, known as “John Doe” secrecy orders, are those that are imposed on private inventors who are not government contractors so that the government has no property interest in the invention. In Fiscal Year 2009, there were 21 new John Doe secrecy orders, according to the latest statistics. An argument could be made that secrecy orders in such cases are infringements on an inventor’s First Amendment rights, but such an argument has never been tested in court.
In general, however, challenges or complaints concerning the operation of the patent secrecy system seem to be rare. Most secrecy orders originate at defense agencies, with the U.S. Navy in the lead this year with 39. (The National Security Agency issued 12 secrecy orders in FY 2009.) In such cases, the most likely customers for the inventions are the military agencies themselves, not commercial enterprises, and so the secrecy orders may have no adverse impact on the inventors.