Austin TX Business Law Blog

Saturday, June 25, 2016

No Money for Patent That Becomes a Military Secret

Can the government make you keep your invention a secret without paying you?

When presented with a matter related to patents,it is always advisable to consult with an experienced patent attorney to clarify issues and pursue options. The world of patents can be a strange one, especially if you trespass into the realm of military inventions. This became very clear to Jim Geer when he filed a patent application in 2000 for an innovative technique for tracking stealth aircraft. Geer, the owner of a small software company, has a background in physics, and likes to "tinker" with technological inventions. He has obtained several patents in the past, but none that resulted in the government concern this one generated.

The Likelihood of Obtaining a Patent is Slim

Knowing well that his patent application was one of over 315,000 being filed that year, he knew it was unlikely that anything would come of his invention, even if the patent was approved. Nonetheless, the U.S. Air Force apparently felt a twinge of discomfort about his idea and sent him an official notification that he must refrain from speaking about the idea in public. A few months later, the U.S. Patent and Trademark Office sent Geer a letter warning him that his idea had been designated a national secret.

Not the Boon He Imagined

Far from being disappointed, Geer thought the certified letter might guarantee him a place in modern history, especially because he had never heard of anyone in this situation. He assumed he might be paid well for his secret. Instead, Geer found out that the secrecy order simply meant he couldn't pursue or discuss his idea due to concerns about national security.  Though he spent time and money pursuing compensation, he eventually came to a dead end. As it turns out, "secrecy orders" are not unheard of. The U.S. Patent Office issued 95 such orders in 2015 (which translates to one for every 6628 applications).

Inventions targeted for secrecy by the government are typically those designed by big companies for military or government agencies, and can be helpful to such companies by keeping their rivals uninformed. When secrecy orders are issued to private citizens, however, there is little redemption except the glory that can only be enjoyed privately. Most often in such situations, the government just wants to stop exploration of an idea that it has no intention of pursuing. There is actually a legal process in place for individuals to request government compensation, but it is time-consuming and most often fruitless.

Penalties for Violations

Inventors who violate the government order of secrecy can lose patent rights and face penalty fees or imprisonment.  Secrecy orders originated in the 1940s and were most likely related to the development of nuclear technology.

Constitutional Questions

Many people, both in and out of the legal profession, feel that these gag orders violate the constitutional right to free speech. So far, when legal challenges have been brought, government agencies have backed down or made the "secret" information public in order to disarm further investigation.

According to Alex Wellerstein, a historian who studies nuclear secrecy, such actions are attempts to avoid confronting the constitutional issue. He views "The government’s legal basis for keeping private information secret [as] very vulnerable."

If your Texas business is troubled by any issues involving patent protection or trade secrets, you should contact a competent, trustworthy business law firm that specializes in such matters.

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