| Short Title: | Invention Secrecy Act of 1951 |
| Legislature: | United States Congress |
| Long Title: | An Act to provide for the withholding of certain patents that might be detrimental to the national security, and for other purposes |
| Citation: | 66 Stat. 3 |
| Date Enacted: | February 1, 1952 |
The Invention Secrecy Act of 1951 (codified at) is a body of United States federal law designed to prevent disclosure of new inventions and technologies that, in the opinion of selected federal agencies, present an alleged threat to the economic stability or national security of the United States.
The Invention Secret Act allows the United States government to classify ideas and patents under "Secrecy Orders", which indefinitely restrict public knowledge of them. The law applies to all inventions in the United States regardless of what the idea or invention is, if a patent is applied for or granted.[1]
Studies have concluded that the Invention Secrecy Act leads to an overall reduction in the number of new inventions being presented, due to the nature of how inventions and sciences build upon prior discoveries. Other studies have shown that being forced secret for a scale of months can cause an invention or idea to be 15% less likely to be cited by later research and development, demonstrating that even a limited restriction has negative impacts for inventors and the sciences. Inventions forced into Secrecy Orders even up to just five years will receive on average 45% less future citations. Once an invention has been made secret, it does not recover from this negative impact over time even when the Secrecy Orders are lifted.
Eric B. Chen of the University of Texas School of Law noted that from 2000 to 2004 alone, only 53% of patents issued by the USPTO were to American residents. This disproportionally penalizes American companies and inventors, who are bound by stricter foreign licensing requirements under the Invention Secrecy Act, while non-resident inventors are not. There is no known data on the economic impacts of "compulsory secrecy" for new ideas under the Invention Secrecy Act. James W. Parrett Jr. of the William & Mary Law School has argued that the Invention Secrecy Act can have value for certain areas such as around biotechnology patents, due to their novel and often still unexplored nature.
The Federation of American Scientists and Steven Aftergood obtained Category Review lists via Freedom of Information Act requests that had become declassified, detailing categories of topics of inventions and concepts which the United States government summarily classify via the Invention Secrecy Act.
A declassified document from January 1971, "PATENT SECURITY CATEGORY REVIEW LIST", lists the categories of all inventions that the United States Patent Office would refer to the Armed Services Patent Advisory Board for consideration of becoming classified under the Invention Secrecy Act. A similar document, "DoD PATENT SECURITY REVIEW LIST, May 2009", details the list as of 2009.
The high-level categories of inventions from each year which can be forcibly classified are listed in the following table, and each section includes an expansive spectrum of topics beneath each:
| 1971 declassified Category Review List | 2009 declassified Category Review List | |
|---|---|---|
| Amplifiers, Recorders, Sensors and Electronic Tubes | Amplifiers, Recorders, Sensors, & Electronic Tubes | |
| Computers | Computers | |
| Concealment, Communications, Countermeasures & Counter-countermeasures | Concealment, Communications, Countermeasures & Counter-Countermeasures | |
| Contracts | Contracts | |
| Explosives & Inflammables | Explosives & Inflammables | |
| Explosive Actuating Methods & Means: Fuzes, igniton, Mine Sweeping & Torpedoes | Explosive Actuating Methods & Means: Fuses, Igniters, Mine Sweeping & Torpedoes | |
| Explosive Device Detection Methods & Means | Explosive Device Detection Methods & Means | |
| Mapping, Charting & Geodesy | Mapping, Charting & Geodesy | |
| Materials | Materials | |
| Meteorology | Meteorology | |
| Military Photography | Military Photography | |
| Miscellaneous | ||
| Missiles, Munitions and Explosive Devices | Missiles, Munitions and Explosive Devices | |
| Navigation Equipment | Navigation Equipment | |
| Object Locating Methods & Means | Object Locating Methods & Means | |
| Power Supply | Power Supply | |
| Propulsion Systems, Propellants, & Fuels | Propulsion Systems, Propellants, & Fuels | |
| Protective Measures | Protective Measures | |
| Radiology | Radiology | |
| Unique Materials, Devices, or Performance Data and Characteristics | Unique Materials, Devices, or Performance Data & Characteristics | |
| Vehicles | Vehicles | |
| Weapons, Counter-weapons & Fire control | Weapons, Counter-weapons & Fire Control |
James Constant of California was restricted by Secrecy Order from 1969 to 1971 for his advancements in radar systems to track objects ranging from shipping containers to parts on an industrial assembly line, and later in 1982 was denied any damages by courts.
James Greer of Alabama was bound by a Secrecy Order from 2000 to 2008, for an invention that could have allowed development of "anti-stealth" tracking systems.
In 2002, inventor Robert Gold saw his idea for improvements in wireless communications restricted by a Secrecy Order.
Some inventors have resisted in public their Secrecy Orders: in 1978, the National Security Agency restricted an invention called the "Phasor
Husband and wife inventors Budimir and Desanka Damnjanovic developed a method for "spraying liquid from the back of an airplane", intended to be a patent for an anti-heat-seeking missile technology system. In 2009, their concept was made classified under Secrecy Orders, and the Damnjanovics began the legal appeals process. The Federal Bureau of Investigation responded with visits to their home, to warn them against any disclosures of the technologies, per their attorney Hattem Beydoun and court filings. Their path through the Invention Secrecy Act appeals process took five years to unsuccessfully resolve the restrictions on them. In 2014, the Damnjanovics filed a lawsuit against the Air Force and the Department of Defense to lift two unique Secrecy Orders, claiming violations of the First and the Fifth Amendments of the Constitution of the United States. The government ultimately settled and lifted the Secrecy Orders, before the case went to trial and legal precedent could be established.
The Invention Secrecy Act has been criticized for having no defined standards or regulatory framework of what sorts of ideas may be sealed under Secrecy Orders and the lack of any safeguards for privacy or intellectual property rights. The Federation of American Scientists stated that the restrictions at best “err on the side of caution and impose secrecy orders on patents that present even the slightest threats,” and at worst, "bureaucrats mindlessly impose secrecy orders and then forget about them, because that’s simpler than carefully considering the implications of new technologies becoming public."
Historian Alex Wellerstein has criticized the Invention Secrecy Act, saying, "The government’s legal basis for keeping private information secret is very vulnerable," and that the government carefully manages Secrecy Orders to avoid the possibility of Federal courts "creating precedent around the core constitutional issue". Thomas G. Dignan Jr., writing for Michigan Law Review, argued as the law is written and from the limited legal challenges related to it, that any inventor who shared or disclosed their ideas with the government effectively loses almost all avenues of appeal if their ideas are placed under Secrecy Orders.[1]
The three known types of Secrecy Orders are:
All "security review" files related to "the security review of patent applications, placing of applications under secrecy, modification of secrecy orders, and withdrawing of applications from secrecy" are required to be destroyed ten years after a Secrecy Order is rescinded.[1]
There are three known types of Secrecy Orders which can be enforced, referred to as Types I, II and III. Violation of United States government Secrecy Orders to reveal your ideas may lead to arrest and imprisonment.
The Secrecy Order notices will command inventors that:[1]
Inventions which received any government funding toward their research and development will be reviewed, beyond any military departments or intelligence agencies, by the segment of the United States government that had a funding and research stake in them.[1]
Each year, tens of thousands of inventions and patent applications are reviewed by hand to decide if they should be allowed to be published or should be hidden from the public. As of 1997, it was reported that five to ten percent of all patents that the American military reviews under the ISA become subject to Secrecy Orders. In the four-year window of 2013 to 2017, an average of 117 new inventions per year were restricted with Secrecy Orders. In the same 2013-2017 period of time, an average of 25 Secrecy Orders were reportedly rescinded per year. In 2017, the Federation of American Scientists reported that 5,784 patents were restricted under Secrecy Orders. 5,792 unique patents were under Secrecy Orders as of 2018.
Through 2012-2020, the United States Patent Office began investigations into expanding application of the Invention Secret Act to have more consideration of economic impacts on American markets from new inventions, if those new ideas may be disruptive to existing industries. Attempts through 2020 to expand the scope of the Invention Secrecy Act in Congress were unsuccessful, attributed to lobbying from groups such as the American Bar Association.
The law applies to all inventions created in the United States, regardless of their nature or nationality of the creators, despite that the "vast majority" of inventions have no legal or financial stake from the government.[1]
Ideas restricted by the Invention Secrecy Act's Secrecy Orders can be prohibited from any public disclosure; sales to any party except the United States military industry or exports to other nations can be prohibited; and can even be sealed from the public as classified. Any appeals are limited to the United States Federal agency that itself restricted the ideas. The United States Patent and Trademark Office has investigated the possibility of restricting new technologies if those new ideas may be disruptive to existing industries. The Invention Secrecy Act has been criticized for lack of oversight and impacts on future scientific research by inventors, industry, attorneys and academics.
The United States government has long sought to control the release of new technologies that might threaten the national defense and economic stability of the country. During World War I, Congress authorized the United States Patent and Trademark Office (PTO) to classify certain defense-related patents. This initial effort lasted only for the duration of that war but was reimposed in October 1941 in anticipation of the entry of the United States into World War II. Secrecy Orders were initially intended to remain effective for two years, beginning on July 1, 1940, but were later extended for the duration of the second World War.
Through World War II alone, at least 11,000 inventions were reported for classification review by the United States Government, and other analysis found that in the WWII era at least 8,475 inventions were forcibly classified, accounting for 75% of all new inventions in that time period, where over 20,000 total patents were reviewed for possible restrictions.
The final version of the 1917 WW1-era law ordered ideas should be restricted if:
The Invention Secrecy Act of 1951 made such patent secrecy permanent, though the order to suppress any invention must be renewed each year, except during periods of declared war or national emergency. Under this Act, defense agencies provide the patent office with a classified list of sensitive technologies in the form of the "Patent Security Category Review List" (PSCRL). The decision to classify new inventions under this act is made by "defense agencies" as defined by the President, These agencies include the Army, Navy, Air Force, National Security Agency, Department of Energy, Department of Homeland Security, NASA, but even the Justice Department has played this role. If government officials determine the idea and invention can pose a threat, it can be restricted from the public with a Secrecy Order. Any Federal government agency, not just those associated with the military and intelligence community, may request any patent be restricted under the Invention Secrecy Act if that agency itself has the power to classify data as restricted.
A Secrecy Order bars the award of a patent, orders that the invention be kept secret, restricts the filing of foreign patents, and specifies procedures to prevent disclosure of ideas contained in the application. By law, the government is only required to compensate the inventor of a restricted idea for 75% of its value as deemed by the agency restricting it, and the inventor must demonstrate they suffered damages.[1]