Invention Secrecy Act

The United States government, through various laws, has attempted to control the release of new technologies that might threaten the national defense and economic stability of the country. Invention secrecy in the United States can be traced to at least the 1910s, and it accelerated during the 1940s alongside the classified development of nuclear weapons. The 1917 Act authorized the Commissioner of Patents to withhold patents during wartime if disclosure might aid the enemy or endanger public safety. Contemporary reports stressed that secrecy orders had to balance national defense with the protection of inventors' rights. The final version of the 1917 World War I–era statute directed the Commissioner of Patents to restrict inventions when: In 1940, the United States Patent and Trademark Office (USPTO) and the military created the Army and Navy Patent Advisory Board, later renamed the Armed Services Patent Advisory Board, to advise on secrecy determinations. Secrecy orders were intended to last two years beginning July 1, 1940, yet they remained in force for the rest of the war. Through World War II alone, at least 11,000 inventions were submitted for classification review, and other research found that about 8,475 inventions were actually placed under secrecy—roughly 75 percent of all new inventions reviewed during that period, when more than 20,000 total patents were screened. After World War II, the Commissioner lifted most secrecy orders in 1945, rescinding more than 6,500 patents, though several hundred remained in place on national security grounds. After 1945, the USPTO rescinded 6,575 wartime secrecy orders, but by 1951 the number of active orders had climbed back to nearly 2,400, reflecting Cold War concerns. By 1951, the backlog of secrecy orders had grown to nearly 2,400 pending applications. ==Invention Secrecy Act of 1951==

The Invention Secrecy Act (ISA) 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. When the ISA was passed in 1951, the USPTO did not publish pending applications, so the statute did not originally address withholding publication. There are three known types of secrecy orders that can be enforced, referred to as Types I, II, and III. Violation of a United States government secrecy order may lead to arrest and imprisonment. Willful violation can bring up to a $10,000 fine and two years' imprisonment, with possible additional penalties under 18 U.S.C. § 798 when classified. Disclosure of inventions or ideas restricted by a secrecy order can result in up to two years' imprisonment in federal prison. The secrecy order notices command inventors that: The three known types of secrecy orders are: • Type I secrecy orders, referred to as "Secrecy Order and Permit for Foreign Filing in Certain Countries," are typically used to restrict ideas or materials derived from government funding that may not themselves be secret or classified before receiving an order under the ISA, but are already subject to restrictions under the Export Administration Regulations or International Traffic in Arms Regulations. • Type II secrecy orders, also known as "Secrecy Order and Permit for Disclosing Classified Information," apply to ideas and inventions that are already partly composed of classified concepts and technologies, or that are submitted for patent review by Americans who hold existing United States Department of Defense security agreements. Types I and II therefore typically apply to ideas and concepts already within the United States government domain. • Type III secrecy orders, called a "General Secrecy Order," are used as a catch-all to restrict ideas, technologies, or inventions not covered by Type I or II secrecy orders. Type III secrecy orders are generally applied to inventions by the general public. 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. ==Known public examples of restricted technologies==

Notable examples include inventors who publicly resisted secrecy orders. In 1958, the Associated Press reported on Vienna-born physicist Otto Halpern, who was forced into a private, classified courtroom trial based upon national security claims by the U.S. Navy. Halpern's invention was related to a new method to evade radar-type detection. In 1978, the National Security Agency restricted an invention called the "Phasorphone," which allowed people to digitally alter and obfuscate their voices on telephone calls for privacy from government surveillance. The Phasorphone inventors took their opposition to the media, and months later the NSA rescinded the order. James Constant of California was restricted by a 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 in 1982 was denied damages by the courts. James Greer of Alabama was bound by a secrecy order from 2000 to 2008 for an invention that could have enabled development of "anti-stealth" tracking systems. In 2002, inventor Robert Gold had his idea for improvements in wireless communications restricted by a secrecy order. Husband and wife inventors Budimir and Desanka Damnjanovic developed a method for "spraying liquid from the back of an airplane," intended as a patent for an anti-heat-seeking missile technology system. In 2009, their concept was classified under secrecy orders, and the Damnjanovics began the appeals process under the ISA. The Federal Bureau of Investigation visited their home to warn them against any disclosures of the technologies, according to their attorney Hattem Beydoun and court filings. Their path through the appeals process under the ISA took five years but did not resolve the restrictions. In 2014, the Damnjanovics filed a lawsuit against the Air Force and the Department of Defense after their patent for an anti–heat-seeking-missile measure was classified under two secrecy orders. They claimed violations of the First and Fifth Amendment to the United States Constitution. The government ultimately settled and lifted the secrecy orders before the case went to trial and legal precedent could be established. The government paid the Damnjanovics $63,000, described as a "rare case" by Alex Wellerstein in Bloomberg News of private inventors being compensated for a secret patent application; the years-long process "almost never pays out." ==Criticism and concerns==

Handling and evaluation of ideas and patents Critics argue that the ISA lacks published standards for deciding which inventions may be placed under secrecy orders and provides no clear safeguards for privacy or intellectual property rights. The only limitation on restriction is the discretion of agencies; how they make that determination is entirely up to them. Writing in Slate, Arvind Dilawar said of the ISA, "At best, government agencies err on the side of caution and impose secrecy orders on patents that present even the slightest threats to national security. 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." Dilawar added that the secrecy system leaves potentially valuable inventions withheld from public view, with inventors' only recourse being to petition the government to reconsider. Between 1983 and 1993, the number of secrecy orders rose by about forty percent (from 3,900 to 6,033), a level comparable to the wartime peak in World War II. Historian Alex Wellerstein has said that "the government’s legal basis for keeping private information secret is very vulnerable," adding that officials manage secrecy orders to avoid federal courts "creating precedent around the core constitutional issue." Commentators have also compared secrecy orders to Fifth Amendment takings, arguing that the Act deprives inventors of property rights without providing the constitutional level of due process or compensation required in other contexts. Legal scholars have argued that the system is inherently unfair because, unlike takings under eminent domain where just compensation must equal full value, the ISA authorizes the government to automatically withhold twenty-five percent from inventors. Thomas G. Dignan Jr., writing in the Michigan Law Review, argued that inventors who disclose ideas to the government "effectively lose almost all avenues of appeal" once a secrecy order is imposed. Court decisions applying the Act have repeatedly denied compensation to inventors because they could not establish "actual damages," even when secrecy orders clearly restricted them. By the early 1990s, secrecy orders increasingly targeted private inventors of dual-use technologies. In 1991, more than three-quarters of new secrecy orders—506 out of 774—were issued to private inventors, covering fields such as lasers, ceramics, semiconductors, software, and space photography. Impacts on economics and creation of inventions Multiple studies conclude that the ISA reduces the overall number of new inventions disclosed, because scientific and technical progress typically builds on openly published prior work. One analysis found that keeping an invention secret for only a few months makes it about 15 percent less likely to be cited in later research and development, showing that even short-term restrictions can inhibit follow-on innovation. Inventions held under secrecy orders for five years receive, on average, 45 percent fewer citations, and they do not regain that lost impact once the orders are lifted. Eric B. Chen of the University of Texas School of Law reported that between 2000 and 2004 only 53 percent of USPTO patents were issued to U.S. residents. Because the Act imposes stricter foreign-filing controls on American applicants, U.S. inventors face greater burdens than nonresident inventors. No comprehensive data exist on the broader economic effects of such "compulsory secrecy," although James W. Parrett Jr. of William & Mary Law School has argued that limited secrecy can be justified for emerging areas such as biotechnology patents, where disclosure risks remain poorly understood. Changes in presidential administrations create instability in what technologies are made secret, adding uncertainty for inventors. ==Declassified Category Review Lists==

The Federation of American Scientists and Steven Aftergood obtained Category Review Lists through Freedom of Information Act requests after they were declassified, detailing categories of inventions and concepts that the United States government may classify under the ISA. A declassified document from January 1971, Patent Security Category Review List, lists the invention categories that the United States Patent Office referred to the Armed Services Patent Advisory Board for possible classification. A similar document, DoD Patent Security Review List, May 2009, gives the categories in 2009. The high-level categories from each year that could be classified are compared below. ==See also==