Paul Marks, senior technology correspondent
More than 5000 US patents have never seen the light of day because their exploitation by an enemy state has been deemed a threat to US national security. Now Congress is arguing there's a new reason to keep patent applications secret: economic security.
Lawmakers say they want to stop US inventions being stolen and exploited before they are legally protected by a granted US patent. This is possible - though not proven - because, like most major patent offices around the world, the US Patent And Trademark Office (USPTO) publishes the technical details of a patent application 18 months after it is filed. After that, it generally takes another 18 months to grant the patent.
It's this publishing-to-granting window that's said to give invention thieves plenty of lead time in which they can study precisely how a novel technology works and develop a non-infringing way to do the same thing. The process can even be automated, using genetic algorithms to "evolve" designs that self-mutate away from infringing designs.
"In some circumstances, this information allows competitors to design around US technologies and seize markets before the US inventor is able to raise financing and secure a market," said the Commerce, Justice, Science and Related Agencies Subcommittee in a July 2011 report.
Now Congress is acting on that study and has asked the USPTO, part of the Department of Commerce, to consider extending the screening of inventions on national security grounds to spot "economically significant patents" that ought not to be revealed too soon to "foreign entities". But as a recent report revealed, that's no small task: intellectual property contributes $5?trillion per year to US GDP and 40 million jobs to the US economy, so finding the key patent filings in a bid to hide them won't be easy.
Unlike the US Invention Secrecy Act of 1951, which allows militarily significant inventions to stay secret forever, any new rules on economic security would most probably simply modify when a patented invention can be revealed. Inventors can already ask for a patent to be hidden until granted (revealing the brief abstract only) but this new idea might allow them to conceal even that - and/or allow the USPTO to mandate secrecy for what it deems are basic, cornerstone ideas for lucrative new markets.
Although the Federation of American Scientists has warned that treating economically sensitive patents like a national security issue would be a mistake, the USPTO says it is agnostic about changing the system and is polling views from "the innovation community" about the wisdom and practicalities of such a move. In a call for comments published on 16 April, USPTO chief David Kappos asks how (and by whom) critical economic technology can be spotted ahead of time.
It's a key question: would a patent examiner seeing an iPhone multitouch patent really have foreseen the incredible market for smartphones and other mobile devices with touchscreens it spawned, for instance? Probably not. And if patents are withheld, Kappos asks, what will be the impact on US inventors' and innovators' ability to "access the newest technical information upon which to build and stay ahead" - as the patent system currently promises them after 18 months?
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