Patently Absurd: The Invention Secrecy Order System

Abstract

The current patent application secrecy order system has almost no safeguards to prevent abuse and overreach into private intellectual property rights by the Government. Defense agencies are presently able to have the United States Patent and Trademark Office place secrecy orders on applications by merely deciding for themselves that revelation of information found therein would be detrimental to national security; there are no rules or restrictions on how the agencies go about making this determination. Likewise, the current system contains little in the way of protection for inventors who are left without a meaningful way to challenge these orders. The prospect of devoting substantial time, money, and resources towards inventing a new technology only for the Government to both prevent inventors from obtaining a patent on it and forbidding them from leveraging such a patent cuts against the incentivization that lies at the heart of a healthy intellectual property regime. An overhaul to this system guaranteeing stronger safeguards and better protections is required to maintain the pace of technological advancement facilitated by the strong private rights afforded by the United States’ patent system. This Comment proposes a number of changes to the current statutory and regulatory framework that will create these necessary protections to check Government abuse and to safeguard inventors’ rights.