Jim Geer filed a patent application on April 7, 2000, that describes a novel technique for tracking stealth aircraft. It was an idea that Geer, who owns a 10-person software company and has a background in physics, had been toying with for years. He had no connection to the military or defense contractors, and there was no reason to believe he was in a position to develop the technology. He thinks of his tendency to apply for patents as a way to unwind in the evenings. "Some people like football," Geer said. "I like to tinker."
It seemed likely that nothing practical would ever come of Geer’s patent application—one of over 315,000 filed that year—even if it were approved. But the U.S. Air Force preferred to take no chances and, using a little-known power, ordered Geer to refrain from speaking in public about his stealth-detection concept. The following August, the U.S. Patent and Trademark Office sent Geer a warning letter that declared his idea a national secret.
Geer was delighted. This seemed like validation that he was onto something momentous, and he figured the government would pay him to license his patent so long as he kept his mouth shut. Besides, the garrulous Alabaman already had a handful of patents to his name, and he had never heard of other inventors with government secrecy orders. “I thought, ‘Wow, that’s neat!” he recalled. That impression soon changed when he realized that, to the government, issuing the secrecy order was the end of the story. Having an idea interesting enough to become a government secret just “means you’re S.O.L,” he said.
Just a handful of people find themselves in Geer’s position, forbidden by the government from pursuing ideas laid out in patent applications due to national-security concerns. The U.S. patent office issued 95 secrecy orders in 2015, one for every 6,628 applications received. Most concerned inventions developed by large companies specifically for the military or other government agencies. It goes with the territory, particularly when working with classified material for a government client. The secrecy can even help defense contractors keep rivals in the dark.
These gag orders are a different sort of ordeal for private inventors, about a dozen of whom file patent applications that are made secret by government mandate each year. The fate of most of these inventions remains murky—they’re secret, after all. The few secret patents that come to light have usually done so after years mired in gridlock. The government is often content to stop other people from working on an idea, even if it has no interest in pursuing the invention on its own. There is a legal process to ask the government for compensation, but it takes years and almost never pays out.
Geer decided not to take his secrecy order sitting down. “I started thinking, 'Well heck, this is costing me money!' I started writing letters to them, trying to get out of it,” he said. He wrote a business plan describing what he could do if the secrecy order weren’t stopping him, detailing the governments and corporations that might buy the technology to track planes. He had something of track record turning patents into real money, selling one idea for a TiVo-style digital-video recorder to a subsidiary of Intellectual Ventures, one of Silicon Valley’s best-known amassers of patents. His most recent patent, received in September 2015, would use the signals sent by tires to the computer within a car as a means of surveillance.
Like many inventors, Geer is an exuberant optimist. He claimed his stealth-detection patent could earn $610 million over 10 years. He asked the government for $5.6 million, or two percent of his projected gross sales over the first seven years of the secrecy order.
“They basically said go fly a kite,” Geer said.
Patent secrecy orders are unlike other forms of government secrecy in one important way. Most classified information is created by the government in the first place, while the brain of a citizen-inventor such as Geer is, by definition, private. Requiring inventors to keep quiet is arguably a violation of their constitutional right to free speech and an unlawful confiscation of their property. When faced with legal challenges to these gag orders, government agencies have quietly settled or even made public the information within the patent to invalidate the dispute.
Alex Wellerstein, a historian who studies nuclear secrecy, sees such moves as deliberate attempts to avoid creating precedent around the core constitutional issue. “The government’s legal basis for keeping private information secret is very vulnerable,” he said.