The initial invention secrecy policies came as part of a temporary wartime order during WWI. New legislation enacted on the eve of WWII followed the same model in an effort to tamp down on nuclear secrets. Immediately following the war, Washington looked to ease worries about rogue scientists by simply banning them from seeking patents related to a wide swath of atomic energy research. Congress also gave the patent office permanent authority to put gag orders on applications via the Invention Secrecy Act of 1951.
Under that law, federal agencies can ask the patent office to seal applications with orders that can be renewed annually. Any inventor who breaks a gag order can lose the patent rights or face fines and incarceration. While a handful of patent-secrecy orders are reversed each year, most seem to stay in place indefinitely. The longest-running secrecy orders date back to the early 1940s, and Wellerstein believes they almost certainly relate to nuclear technology. Other fields that tend to be susceptible are cryptography and communications technology for guiding weapons.
“The secrecy is more sexy than the invention in many cases”
The government’s use of secrecy orders has ebbed and flowed over time. The number of new orders issued per year dropped at the end of the Cold War and hasn't ticked back up. But another change, in the years since 2001, has seen a drop in the number of secrecy orders that are rescinded. There are currently more than 5,500 secrecy orders on patent applications, the most since 1993.
Private inventors who have asked for compensation haven’t been successful, thanks to an ironclad Catch-22: The inventions are secret and so, by definition, lack a market because the ideas in the patent applications can't be publicly revealed. That makes it impossible to demonstrate how much money is being lost by the impact of government secrecy. Government lawyers facing these cases have routinely argued that there is no evidence that the inventors would have made any money from their ideas. It's easy to dismiss claims such as those Geer laid out in his business plan as fanciful.
James Linick, an engineer living in Florida, sued the Army for $2.5 million after it put a secrecy order on one of his patent applications. In court documents, he cited past work with European arms makers and argued that he was having trouble landing new contracts because of the secrecy order. The government responded by saying that Linick's failure to land business showed that his ideas probably weren’t quite as lucrative as he imagined. Thomas Wheeler, a judge in the U.S. Court of Federal Claims, sided with the government. The inventor had produced evidence of a bright idea, the judge wrote , but he had “not produced evidence of a valuable idea.” (Linick, through his lawyer, declined to comment.)
A more sweeping challenge to the secrecy law came recently from two engineers from Detroit's water department with an idea for how to confuse heat-seeking missiles. Budimir and Desanka Damnjanovic, a married couple, wanted to patent a method for spraying liquid from the back of an airplane. This, they said in their application, would confuse anti-aircraft weapons systems. The Patent Office issued a secrecy order in 2009, and the Damnjanovics began the administrative process of applying for compensation.
The government responded by sending FBI agents to their house to make sure the inventors understood the seriousness of the situation, according to both court documents and the couple's lawyer, Hattem Beydoun. The Air Force, meanwhile, dragged out its response to their request for compensation. It took five years for the Damnjanovics to exhaust their options. The couple sued in 2014, claiming that the Invention Secrecy Act violated the First Amendment and the Fifth Amendment. The government, in turn, lifted the secrecy and moved to have the case dismissed. “There is no longer any ‘live’ controversy regarding any alleged restriction on their free speech rights,” the government said in a court filing.
The official reason given for not renewing the secrecy order was that the idea wasn’t viable. The technique in the patent application by the Damnjanovics would be useful for only a few airplanes, the government contended, and the equipment needed to implement their design would be cumbersome. Given all this, the patent application posed no threat to national security. These things were probably true a few years earlier.
The Damnjanovics' lawyer questions the timing of the Air Force’s sudden skepticism. “What happened that caused you to change your mind? I’ll tell you what happened. It’s that you got sued,” Beydoun said.