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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.


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

The PTO Secrecy Notice and Request for Comments has been issued. It asks whether and how to identify and suppress publication of patent applications that are deemed detrimental to the nation’s economic security.

Recently, Congress has asked whether the currently performed screening of patent applications for national security concerns should be extended to protect economically significant patents from discovery by foreign entities. The Commerce, Justice, Science, and Related Agencies Subcommittee’s report on the 2012 Appropriations Bill stated:

“By statute, patent applications are published no earlier than 18 months after the filing date, but it takes an average of about three years for a patent application to be processed. This period of time between publication and patent award provides worldwide access to the information included in those applications. In some circumstances, this information allows competitors to design around U.S. technologies and seize markets before the U.S. inventor is able to raise financing and secure a market.” H.R. Rpt. 112-169, at page 18 (July 20, 2011)

The Subcommittee instructed the USPTO to proceed to study these issues, stating that the “PTO, in consultation with appropriate agencies, shall develop updated criteria to evaluate the national security applications of patentable technologies [and] to evaluate and update its procedures with respect to its review of applications for foreign filing licenses that could potentially impact economic security.” H.R. Rpt. 112-169, at page 19 (July 20, 2011) In this context, the Subcommittee 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.

There are several interesting aspects to this Notice. Read the rest of this entry

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