If I remember correctly, the government was just offering to pay them for the algorithm. They didn't declare it a secret and force them to sell it. That is why the whole movie was them just debating what they should do with it.
They declared. Government agent started explicitly threatening them with multiple felonies for proof disclosure and threatening 4th guy's family if he will not sign papers.
Yes, but whole story is about that initial contract didn't have non-disclosure clause, they planned to publish their result, and government wanted to add it afterwards and force them to sign new papers, and discussion was about that.
Also in my understanding initial work was about something else, and P=NP proof was some side result.
Seems like a potential incentive for those with national security-related inventions to stay away from the USPTO altogether, and rely on trade secrecy instead.
The caveat is that something similar applies to trade secrets as well, it is just much more difficult for the government to monitor than patent filings. It is difficult to deem a technology as a national security secret if it is only noticed after it is being sold commercially.
Aha, that makes sense. I suppose even if you keep something a trade secret, if you're out there selling stealth-detecting radar interpreters then the guvmint will find out and come see what you're up to. But the crazy inventor in his garage is not going to be able to commercialize it himself.
i'd think that it is the other way - in parallel with filing of a patent application you can just publish it on the Internet thus making any application of secrecy to it pointless (until of course publishing of such info is in violation of some already existing law in the first place).
"national security-related inventions" - it is a pretty vague notion. Anybody who saw real "national interest" Green Card applications can attest to it :) All China driving Priuses or Teslas would make China much more [energy] independent and this definitely would be related to US national security. Does it mean that such patents and technology should be made controlled or even secret?
Not for 18 months, but the applicant can request earlier release.
35 U.S.C. 122 Confidential status of applications; publication of patent applications.
*
(b) PUBLICATION.—
(1) IN GENERAL.—
(A) Subject to paragraph (2), each application for a patent shall be published, in accordance with procedures determined by the Director, promptly after the expiration of a period of 18 months from the earliest filing date for which a benefit is sought under this title. At the request of the applicant, an application may be published earlier than the end of such 18-month period.
...
(2) EXCEPTIONS.—
(A) An application shall not be published if that application is—
...
(ii) subject to a secrecy order under section 181 ;
If you publish the invention, then you will not be able to obtain patent protection for it, generally speaking. Perhaps the statute and rules have a more precise definition of "national security" in this case. But I think the objection is that, like national security letters and other such secret state tools, it is difficult to figure out what forum there is for you to argue with the government over their interpretation of the law. Still, I don't see how we can get around having some sort of non-public mechanism for the military to suppress disclosure of defense tech.
OP said "...in parallel with filing of a patent application you can just publish it...".
I think he means that upon filing the patent application, one publishes what one has filed to mitigate the return to the government from classifying the invention as secret.
This would not impair the patentability of the invention. Patent applications (in the US) are published 18 months after their earliest filing date [1] unless the applicant requests earlier publication.
The applicant's chances of receiving a patent are unchanged by publishing the invention after the application is filed.
A downside could be that should the patent application fail, or be withdrawn by the applicant, the invention falls in the public domain because it's been published and no patent protection issued.
so basically a seizure without any compensation required? I do think the government having issued such an order should be bound in determining an appropriate amount of money to be issued as compensation, tax free.
ideas are property, they have value, and if a government is going to take your ideas then they by default admit value so there is a taking.
I had a similar reaction--the arguments about whether or not the patent have value seem silly, because if they didn't the government wouldn't issue the secrecy order to begin with, to say the least of defending the secrecy order. If they have no value, the secrecy order should be rescinded.
The freedom of speech issue seems to supercede other concerns in my mind, and I also have problems with the idea of IP in general (and in that respect disagree with you). However, ignoring all of that, there are other fundamental flaws with the government's arguments.
"ideas are property, they have value, and if a government is going to take your ideas then they by default admit value so there is a taking".
I agree with you but I think there's a problem that a lawyer may exploit: the goveranment is making them secret not because their monetary value but because they think they could harm national security in some way.
When I was researching the Engima machine for my Java Card emulator[1] I came across the patent issued for the Enigma Rotor system in the US[2]. Filed in 1944 it issued in 1976! Actually October 12th, 1976 which was the same day that NIST announced DES as the new encryption standard[3].
How about not allowing fantasy ideas that have no basis in reality to be patented? That will solve a whole lot of problems, the least of which is this.
There's a significant example of this: Airadar, from 1973.[1] Rufus Applegarth, an experienced avionics designer, had retired from a major avionics company (he was one of the founders) and started work on a new generation of radar units for small planes. He developed a phased-array radar with electronic scanning and a conformal antenna that fit in the leading edge of the wing. Existing aircraft radars in those days had a mechanically scanned dish in the nose of the aircraft, and there was no place to put that on a single-engine plane.
Airadar was way ahead of what the USAF had.
It worked. He put it in a small plane, and Flying magazine reviewed it. Then he was faced with a patent secrecy order. Airadar wasn't heard from again. It was decades before electronically scanned radars for light aircraft became available again.
In the case of a government forcing secrecy on your patent, thus blocking you from public ally commercialising it - is the governemnt then expected to compensate you in return for your loss?
RTFA. The answer is generally no. As with most secrecy cases, it's really hard to prove that the tech has value, since you can't show it to anyone to gauge their interest.
Would you not immediately start trying to commercialise the invention with the military? There are plenty of defence contractors with security clearances that you could show the secret patent to, and offer to secretly license it to them so they can make a device that has the obvious advantage that the government has declared an interest in it!
I don't totally understand how this is not a violation of one's free speech if ideas are being banned. I can see where they get the power to prevent the patent from issuing, but what part of the constitution allows you to ban a private citizen from speaking about their ideas?
> but what part of the constitution allows you to ban a private citizen from speaking about their ideas?
Perhaps no part. The article states the government has been careful to back down when challenged in order to avoid that question being decided in court.
There are restrictions on "time, manner, and place".
You can't use a bullhorn to make political speeches on a suburban street corner at 3am. You can't stand up in the middle of a concert to give a discourse on Hegelian philosophy. You can't use graffiti to express your dislike of the EMU.
And the "[falsely] yelling fire in a crowded theatre" was used in the decision of Schenck v. United States in 1919 to say that opposition to the draft during World War I was not covered under free speech. It was then used as cover to punish anti-government speech, and was overturned in Brandenburg v. Ohio in 1969. Quoting https://en.wikipedia.org/wiki/Brandenburg_v._Ohio :
> Finally, Douglas dealt with the classic example of a man "falsely shouting fire in a theater and causing a panic". In order to explain why someone could be legitimately prosecuted for this, Douglas called it an example in which "speech is brigaded with action". In the view of Douglas and Black, this was probably the only sort of case in which a person could be prosecuted for speech.
If someone invents something that gets classified as secret and then a decade later another inventor invents the same thing, but by then the government doesn't feel the need to classify it anymore, would the original inventor have any recourse?
How does patent infringement claims work in a world with secret patents?
If a patent is secret, shouldn't it then be possible to get the patent in another country? I mean how should others know something is secret? Or am I missing something?
36 comments
[ 3.3 ms ] story [ 78.0 ms ] threadGuys found proof for P = NP, and government declared it as national asset and government secret.
Also in my understanding initial work was about something else, and P=NP proof was some side result.
"national security-related inventions" - it is a pretty vague notion. Anybody who saw real "national interest" Green Card applications can attest to it :) All China driving Priuses or Teslas would make China much more [energy] independent and this definitely would be related to US national security. Does it mean that such patents and technology should be made controlled or even secret?
Charitable yes, but not exactly in their interests.
35 U.S.C. 122 Confidential status of applications; publication of patent applications. *
(b) PUBLICATION.— (1) IN GENERAL.— (A) Subject to paragraph (2), each application for a patent shall be published, in accordance with procedures determined by the Director, promptly after the expiration of a period of 18 months from the earliest filing date for which a benefit is sought under this title. At the request of the applicant, an application may be published earlier than the end of such 18-month period. ... (2) EXCEPTIONS.— (A) An application shall not be published if that application is— ... (ii) subject to a secrecy order under section 181 ;
no. You have 1 year since first public disclosure to file for actual patent.
I think he means that upon filing the patent application, one publishes what one has filed to mitigate the return to the government from classifying the invention as secret.
This would not impair the patentability of the invention. Patent applications (in the US) are published 18 months after their earliest filing date [1] unless the applicant requests earlier publication.
The applicant's chances of receiving a patent are unchanged by publishing the invention after the application is filed.
A downside could be that should the patent application fail, or be withdrawn by the applicant, the invention falls in the public domain because it's been published and no patent protection issued.
[1] http://www.uspto.gov/web/offices/pac/mpep/s1120.html
ideas are property, they have value, and if a government is going to take your ideas then they by default admit value so there is a taking.
The freedom of speech issue seems to supercede other concerns in my mind, and I also have problems with the idea of IP in general (and in that respect disagree with you). However, ignoring all of that, there are other fundamental flaws with the government's arguments.
[1] http://www.javaworld.com/article/2076726/learn-java/my-enigm...
[2] http://www.google.com/patents/US3984922
[3] http://nvlpubs.nist.gov/nistpubs/sp958-lide/250-253.pdf
It worked. He put it in a small plane, and Flying magazine reviewed it. Then he was faced with a patent secrecy order. Airadar wasn't heard from again. It was decades before electronically scanned radars for light aircraft became available again.
[1] https://books.google.com/books?id=NWzlTqj0gQ4C&pg=PA64
Perhaps no part. The article states the government has been careful to back down when challenged in order to avoid that question being decided in court.
You can't use a bullhorn to make political speeches on a suburban street corner at 3am. You can't stand up in the middle of a concert to give a discourse on Hegelian philosophy. You can't use graffiti to express your dislike of the EMU.
And the "[falsely] yelling fire in a crowded theatre" was used in the decision of Schenck v. United States in 1919 to say that opposition to the draft during World War I was not covered under free speech. It was then used as cover to punish anti-government speech, and was overturned in Brandenburg v. Ohio in 1969. Quoting https://en.wikipedia.org/wiki/Brandenburg_v._Ohio :
> Finally, Douglas dealt with the classic example of a man "falsely shouting fire in a theater and causing a panic". In order to explain why someone could be legitimately prosecuted for this, Douglas called it an example in which "speech is brigaded with action". In the view of Douglas and Black, this was probably the only sort of case in which a person could be prosecuted for speech.
How does patent infringement claims work in a world with secret patents?
None of the ones they have released from secrecy. Anything as incredible as those examples is more likely to stay secret.