Private inventions sent to limbo
as U.S. steps up secrecy cloaks
Secrecy News
During fiscal year 2011, there were 143 new "secrecy orders" imposed on
patent applications under the Invention Secrecy Act of 1951, the U.S.
Patent and Trademark Office reported this week.  This represents an
increase of 66% over the year before, and it is the highest number of new
secrecy orders in a single year since 1998.

The Invention Secrecy Act authorizes the government to block the disclosure
of a patent application if it contains information that might be
"detrimental to the national security."  Remarkably, this secrecy authority
extends even to privately generated inventions that the government does not
own or control.

According to federal Patent and Trademark Office statistics obtained by the Federation of American
Scientists under the Freedom of Information Act, a total of 5,241 patent
secrecy orders were in effect at the end of FY 2011, including both new
secrecy orders and those from previous years that had been renewed.  This
is the highest annual total since 1995.

       http://www.fas.org/sgp/othergov/invention/stats.html

An explanation for the increase in secrecy orders was not reported.  Nor
do the statistics themselves include anything like a "figure of merit" that
would confirm their validity or their legitimacy.

The use of secrecy orders has sometimes been questioned, particularly when
they extend to inventions that are not clearly limited to military or other
national security applications.  Forty years ago, government agencies
directed that advanced renewable energy technologies should be reviewed for
possible restriction under the Invention Secrecy Act.  These included
photovoltaics that were more than 20% efficient and energy conversion
systems with efficiencies "in excess of 70-80%."  ("Invention Secrecy Still
Going Strong," Secrecy News, October 21, 2010)

 http://www.fas.org/blog/secrecy/2010/10/invention_secrecy_2010.html

To be "detrimental to national security" -- which is the threshold for a
secrecy order under the Invention Secrecy Act -- is a lower standard than
to cause "damage to national security," which is the criterion for national
security classification.

Government reviewers may recommend imposing a secrecy order on a patent
application in which the government has a "property interest" (i.e. the
government owns or supported the development of the invention) whenever
disclosure of the application "might be detrimental to national security,"
according to a 2010 directive from the Department of Defense.  However, if
the government does not have a property interest in the invention, then
reviewers can only impose a secrecy order if disclosure "would be
detrimental to national security," a more demanding standard.   But the
term "detrimental" was not further defined and the precise scope of the
review process is not publicly known.

       http://www.fas.org/irp/doddir/dod/d5535_02.pdf