PTO’s Notice of Request for Comments on Secrecy—Patents and “National Economic Security”?

The PTO’s recent “Notice of Request for Comments on the Feasibility of Placing Economically Significant Patents Under a Secrecy Order and the Need to Review Criteria Used in Determining Secrecy Orders Related to National Security” defines “economic security.” (See previous post.) The definition of “national security” in the patent context is well understood in light of 35 U.S.C. § 181 and regulations like 37 C.F.R. § 5.5. The notice uses a new term, however—“national economic security.” It is undefined, but it can be thought of as the idea that there is an economic component to defense readiness, i.e. risks that stem from reliance on key economic inputs for the nation’s military that can only be supplied from a foreign countries. For example, this is in part the reason that that the U.S. uses depleted uranium instead of tungsten for armor-piercing weapons.

That definition of “national economic security” can’t be right here, though. The filing or publication of a patent application would not increase the U.S.’s dependence on foreign inputs for national-security uses. The reverse could be true though: publishing a patent application might enable foreign countries to become less dependent on American-made goods for their own national-security needs. If that’s the concern, then, the definition of “national economic security” is at odds with “economic security” as defined by the Subcommittee. “Economic security” means that the U.S. is the first to receive a benefit from innovation (especially during the period between publication and issuance). If “national economic security” means ensuring that the U.S. gets maximum relative benefit from patent applications, it is irrelevant whether the U.S. get the first benefits from those applications.

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Posted on May 11, 2012, in International, Patent, Procedure and tagged , , . Bookmark the permalink. Comments Off on PTO’s Notice of Request for Comments on Secrecy—Patents and “National Economic Security”?.

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