Should patent applications for specific types of technology be withheld from publication on national security grounds? That is a question occupying the agenda at the United States Patent and Trademark Office (USPTO), which has called for expert comments on the issue.
In a recent notice in the US Federal Register, the USPTO coined the broad phrase ‘economically significant applications’ to cover the kinds of IP that could be affected by such a policy. With that label in mind, the organisation said that it ‘seeks to obtain feedback on whether the United States government should institute a new regulatory scheme, modelled on that applied to national security concerns,’ which ‘would institute a secrecy order that forbids applicants from disclosing subject matter deemed to be detrimental to national economic security for such period as the national interest requires.’
According to the notice, the US Subcommittee on Commerce, Justice, Science, and Related Agencies describes ‘economic security’ as ‘ensuring that the United States receives the first benefits of innovations conceived within this country, so as to promote domestic development, future innovation and continued economic expansion.’
Implementing a secrecy order scheme on the information held in patent applications would mark a major break with tradition, posing a genuine dilemma for the USPTO and those who use its services. On one hand, the interval between the unveiling of a US patent application and the subsequent award of the patent opens up global access to the details therein, enabling foreign competitors to design around the relevant technologies and enter markets – perhaps even before the US inventor has been able to raise finance. But on the other hand, applications are published prior to granting to give other IP owners time to consider – and, if necessary, contest – potential infringements on their own patents.
The USPTO is particularly keen for feedback on whether an economic security screening process, which would borrow from current national security screening methods, should be considered – and whether the existing template provided by national security screening is adequate. It is also interested in views on whether patent application screening is already accommodated by the US Secrecy Act. Passed in 1951, the Act is designed to prevent disclosures of new inventions and technologies, in the event that such disclosures would – in the opinion of relevant federal agencies – present possible threats to US national security.
To comment on the USPTO’s query, e-mail SecrecyOrder.Comments@USPTO.gov