If you look through the U.S. Patent Office’s online database, you’ll find some head-scratching proposals for inventions: for a plan to stack airplane passengers on top of one another, for the process of taking a picture of something on a white background, for chocolate-covered ice-cream bars.
But as of 2017, according to statistics reported by the U.S. Patent and Trademark Office and published by the Federation of American Scientists, there were 5,784 patents that you can’t see. They’re the U.S. government’s cache of inventions under “secrecy orders.” We don’t know what they’re for, but once-secret patents recently made public have included a laser-tracking system, a warhead-production method, an anti–radar-jamming apparatus, and a stronger net.
Invention secrecy in the U.S. dates back to at least the 1930s, but it really took off in the ’40s, when the development of nuclear weapons was shrouded in classification. It became official policy in 1952 with the Invention Secrecy Act, which allows USPTO to keep patents deemed “detrimental to the national security” on lockdown. Under the act, USPTO’s commissioner of patents became empowered to flag patent applications—even those developed by private citizens—for review by government defense agencies, which could request that certain inventions be kept secret. Patents covered by such “secrecy orders” may be restricted from export, made available only to defense agencies, or even classified. Patent holders can appeal secrecy orders, but the power to rescind those orders remains in the hands of the agencies that made the requests. While there may be a chance those agencies will reconsider, the statistics aren’t promising: According to figures from the Federation of American Scientists, from 2013 through 2017, an average of 25 old secrecy orders were rescinded each year—while 117 new secrecy orders were imposed annually. With so many inventions deemed secret, so few eventually publicized, and the entire process itself obfuscated in classifications, it’s no wonder that critics have questioned whether the current invention-secrecy regime is really working properly.
FAS has been dogging the patent-secrecy system for three decades now. Founded in 1945 as the Federation of Atomic Scientists by the engineers of the Manhattan Project, the organization was originally formed to promote nuclear disarmament. As time passed, it renamed itself the Federation of American Scientists and expanded its scope to address additional issues, like chemical weapons, arms sales, and government secrecy in general. In the ’80s, when the Reagan administration and the National Security Agency sought to limit discussion of cryptography using invention secrecy, FAS entered the fray, successfully fighting off government censorship and tracking the USPTO’s secrecy activity ever since.
At heart, the contention with invention secrecy is not that it should be abolished, but that it needs to stop being so overused. 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. Either way, potentially useful or even revolutionary information is kept from the public, and the only recourse is to ask the government to reconsider.
FAS acting President Steven Aftergood points to two particular examples that illustrate issues with the current invention-secrecy regime. The first is solar panels. An initially classified document from 1971 reveals that the Army, the Air Force, and NASA all considered “solar photovoltaic generators” possibly worth restricting. “While these might potentially have military applications for space systems, they could obviously also have significant nonmilitary applications,” says Aftergood.
The second example is much more banal but better indicative of how absurd the system can be. Defense agencies periodically rescind secrecy orders, therefore allowing previously restricted patents to be publicly issued. In 2000, USPTO finally issued a patent that was filed back in 1936. And what was the invention so threatening to national security that it couldn’t be made public for 64 years? A cryptograph used to manually code and decode messages—technology that was decades out-of-date by 2000. “It’s historically interesting, but hardly breathtaking,” says Aftergood.
Two inventors have recently pushed back against this system in a civil case. In 2014, husband and wife Budimir and Desanka Damnjanovic filed a suit against the Air Force, the Department of Defense, and their respective secretaries after the couple’s (now-issued) patent for an anti–heat-seeking-missile measure became subject to two secrecy orders. While the Damnjanovics successfully settled their case in 2015 for $63,000, Aftergood notes that “those sorts of protests are unusual.”
FAS is currently trying to get more information about the process behind invention secrecy—rather than the inventions themselves—but even these details are guarded. “We have attempted to obtain the current invention-secrecy-review criteria that would shed light on current invention topics of security interest or concern, but we have not yet succeeded,” says Aftergood. USPTO confirms this, stating that, on top of patents being withheld for national security, “the criteria is also held under national security.”
Aftergood believes that this buffering of government secrecy with additional government secrecy is more knee-jerk than nefarious. While he admits that sometimes secrecy is deliberately applied for political advantage, “More often, it is a bureaucratic reflex that is more or less unconscious.” It seems that, for government agencies with classified rubber stamps, every subject’s a secret.