Taking inventors' lunch money: provide incentives for sensitive technology research under the Patriot Act.

The PCT, a treaty created by the WTO, was agreed upon in 1970. (42) It provides inventors with a one stop application process for the filing of patents with treaty signatories. (43) Previously, inventors were required to submit patent applications individually to each country, (44) whereas the new administrative process, managed by the World Intellectual Property Organization (WIPO), allows for a singular point of entry--in the patent's country of origin. (45) The PCT greatly eased the application process for inventors by unifying the procedures and reducing the costs of protecting intellectual property rights in foreign countries. (46) As a treaty signatory, the United States committed to ensuring the right of transferability as an essential element of patentees' right to profit from their invention not only domestically, but also internationally. (47)

An inventor can only file a patent application under the PCT if the subject matter of the patent is not blocked by the national security concerns of the nation of origin. (48) This allows U.S. government agencies and departments to block applications under the authority of 35 U.S.C. [section] 181 for what they deem as a threat to national security. (49) The national security restrictions embodied in the PCT simply adopt whatever national security measures the patent systems of the participating countries had previously adopted. (50) Without enforceable rights of exclusion for their inventions, the chance of inventors recouping research and development costs are greatly diminished. (51) While 35 U.S.C. [section] 183 protects these financial interests domestically, it does not account for inventors' financial rights from an international transferability perspective. (52)

2. Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)

In an effort to help standardize patent registration and enforcement internationally twenty four years after the PCT, the TRIPS agreement was adopted by the WTO. (53) It was adopted to ease the transferability of these rights amongst the participating nations. (54) Prior to the agreement, and still to a large extent today, intellectual property rights regimes vary widely across international borders. (55) International cooperation on enforcement and regulation of intellectual property rights has provided a certain amount of congruence allowing greater ease of transferability of technologies. (56) The TRIPS agreement provides rules for more effective dispute resolution regarding intellectual property rights amongst WTO members. (57)

TRIPS signatories adopted minimum standards for intellectual property laws in order to make it easier for countries to apply the law from the country of development, thus protecting the intellectual property. (58) For example, TRIPS requires member countries' patent systems to have a twenty year minimum limited monopoly period of protection. (59) At its core, the enforceability of patent rights between different nation's centers on the dispute resolution process and the importance attached to the registration of patents. (60)

Additionally, TRIPS provides guidance on the enforcement of rights across borders (61) by seeking greater guarantees of right preservation and increased ease of transferability. As an inventor, it is much more attractive to assert an invention overseas when there are agreements in place that ensure some sort of recourse in the event that their patent rights are infringed upon. As TRIPS signatories, the United States and other participating countries have recognized the value of international technology transferability to the patent owner.

Many sensitive technologies that fall under the guise of 35 U.S.C. [section] 181 have viable peaceful uses. (62) Consider, for example, the computer scientist who develops a powerful new encryption method. For decades, encryption has played an important role in protecting national security-sensitive communications. (63) However, such encryption technology also has peaceful uses, such as the protection of financial transactions through authentication and confidentiality programs. (64) A wide array of markets exists for such technologies in the private sector and could be very lucrative if the technology were allowed into the marketplace. (65) Although the U.S. government has given way in some instances, precisely this is what is prevented through the withholding of patents under 35 U.S.C. [section] 181 and the disruption of research caused by the Patriot Act.

There is a strong incentive to implement intellectual property rights regimes (66) that conform to TRIPS in order for developing countries to continue development. (67) By conforming to TRIPS, countries automatically receive the benefits other participating countries receive. (68) The benefits encourage developing countries to provide economic incentives that would allow technology transfer of patentable subject matter into their country deemed beneficial for their advancement. (69)

C. The Patriot Act and the Its Effect on Capabilities of the Federal Government

The Patriot Act has greatly enhanced the capabilities of the U.S. government to monitor suspected terrorist activity. (70) This capability mirrors the discretion afforded to government agencies and departments used to block the issuance of patents for national security reasons. (71) The chilling effects of this capability limit private technological development in arts that might be of national security concern. (72)

1. Purpose of the Patriot Act

The Patriot Act is an effort by Congress to establish greater capabilities of government agencies and departments to monitor and deter terrorist activities. (73) It allows for greater infiltration into the development and research of possibly sensitive technologies. (74) Section 221 of the Patriot Act amended the Trade Sanctions Reform and Export Act of 2000 to prohibit the transfer of technology capable of being used in the development of biological or chemical weapons. (75) Such a provision is entirely justifiable, given the dire consequences of such technologies if they end up in the hands of terrorists. (76) Which technologies aid in the development of such weapons, though, is a matter entirely determined by whatever department or agency is responsible for the review of the particular export function, whether it be the Atomic Energy Agency or the Department of Defense. (77) There are similarities between this provision and 35 U.S.C. [section] 181. (78)

Which technologies could be "used to facilitate the development, or production of N chemical or biological weapon[s] or weapon[s] of mass destruction?" (79) One could infer from the expansive nature of this language, (80) a simple development in metallurgical science could trigger concerns that would fall into this sphere because it could affect delivery mechanisms for biological or chemical weapons. For example, a discovery might allow the manufacture of metals that provide less drag in flight to be interpreted as a discovery for more efficient missile flight. Alternatively, a new development in computer hardware or software technology could tread into the national security sphere because of the way in which the technology affects missile guidance systems. The computer programs and technologies that enable Global Positioning Tracking are certainly essential to guided missile systems, (81) thus any advancement in this area could be construed as aiding the development of chemical or biological weapons.

The responsible authorities have wide discretion in determining whether a particular technology could have potential national security-threatening uses. (82) This discretionary capacity embodied in the Patriot Act, so closely mirrors 35 U.S.C. [section] 181, one might assume the Patriot Act has a similar compensation scheme corollary to 35 U.S.C. [section] 183, but it does not. (83) The result is an unchecked ability to discourage private research in sensitive technologies.

2. Effects of the Patriot Act on the Development of National Security-Sensitive Technologies

While the Patriot Act contains no provision explicitly affecting the patentability of technologies, (84) it allows for greater deference to governmental agencies in their decisions as to what may or may not be a threat to national security. (85) Thus, inventors and scientists in the private sector have an added consideration in determining what might be a potentially viable implementation of an art. (86) Primarily, if a budding scientist is considering entering a field of research that could entail surveillance by government agencies, through phone calls, emails, internet site visits, and library checkouts, that scientist may avoid such concerns altogether, instead opting for a field that is less monitored. (87)

This result is adverse to any country interested in encouraging development of new technology. (88) While the primary impetus for creating the U.S. intellectual property system is to encourage such development, (89) the Patriot Act works against this interest--quashing entire fields of private development for fear that the government could step in at any point and halt development entirely. (90) Combined with the capability of government agencies and departments to restrict patentability of technologies embodied in 35 U.S.C. [section] 181, this heightened interest in prohibiting technologies deemed sensitive from entering international trade, or even just the public eye, has a damaging effect on the development of technologies by the private sector. (91)