Patent Office; new rules for 'secrets.' (controls for militarily critical inventions)

Patent Office: New rules for 'secrets'

Since 1951, the U.S. Patent and Trademark Office has been able to impose a secrecy order in instances where disclosure of an innovation might be "detrimental to the national security." Roughtly 500 of the 121,000 patent applications filed with the agency each year receive such a classification. In such cases, no patent is issued and only permit-authorized publication or disclosure of the innovation is allowed unless and until the Department of Defense (DOD) lifts the secrecy order it had the Patent Office impose.

Beginning this week, however, two less restrictive types of secrecy orders are being added to the Patent Office's arsenal of controls for militarily critical inventions, such as new computer technologies.

One states that government contractors already authorized to use and hold classified information may develop -- and share with potential co-developers -- innovations placed under this secrecy order, as long as all of those involved follow DOD's rules for safeguarding classified information. The other secrecy order not only allows the development of an affected innovation for marketing domestically, but also permits the inventor to apply for patent protection on it in 15 foreign countries -- mostly members of the North Atlantic Treaty Organization.

In the past, use or sharing of information under a secrecy order required the burdensome acquisition of "special permits," explains Kenneth L. Cage, director of the Patent Office's secrecy controls branch. These new secrecy classes, he says, have been designed to eliminate much of the red tape involved in obtaining limited exceptions to the publication ban.

However, loosening the restrictions associated with some of the agency's secrecy orders may also broaden the scope of technologies for which a secrecy order can now be justified, according to Stephen Gould at the American Association for the Advancement of Science's Committee on Scientific Freedom and Responsibility, in Washington, D.C. Gould worries that these new controls may be applied to innovations that previously would not have drawn a secrecy order. He says this could encourage inventors to treat more of their new ideas as trade secrets, in order to avoid having a secrecy order placed on them. Instead of loosening controls, Gould says, the changes might further restrict the free flow of scientific communication.

Cage disagrees, saying few of the cases subject to secrecy controls by his office would likely have escaped other agencies' export-or publication-control laws.