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

The Patent Act has helped enable the United States to become a superpower in today's technological world. (92) Encouraging private sector development of technology has played an important role in allowing the United States to thrive. (93) Arguably, today's global economy is powered by those who can develop technologies the quickest; (94) creating a secure environment for inventors to develop in is the foundation for any economy that wants to flourish in the future. (95)

3. Current Developments and Potential Changes to the Patriot Act

As portions of the Patriot Act come up for renewal, U.S. intelligence agencies are pushing for continuance of their discretionary monitoring capabilities. (96) While the original Patriot Act passed overwhelmingly in Congress following the terrorist attacks on the World Trade Center in 2001, civil liberties groups and some Senators, mostly from the Democratic Party, are now seeking to restrict the powers granted to federal agencies. (97) Furthering the concerns of these groups, President George W. Bush has authorized the National Security Agency to perform secret wiretapping activity in search of terrorist activity. (98) Both the Republican and Democratic parties recognize that there needs to be significant changes to the Patriot Act before it can be renewed, (99) therefore it is likely there will be shorter extensions to the Patriot Act until the parties can reach a mutual agreement. (100) The reauthorization bill for the Patriot Act currently before Congress contains many provisions that will add civil liberties safeguards to the discretionary monitoring capabilities of investigatory and intelligence agencies. (101) The struggle remains to ensure the Patriot Act will allow the agencies following it to continue to be successful in their efforts, while at the same time protecting the civil liberties of Americans in the process. (102) It is difficult to say at this point what the final version of the renewed Patriot Act will be. However, it is likely to be renewed, in some form or fashion, since its measures have been invaluable in allowing law enforcement agencies to better deter terrorist activities. (103)

Likewise, it is difficult to predict the effect of any changes to the Patriot Act upon the scientific community. Some provisions are more likely to weigh heavily on the minds of inventors than others. For example, one of the provisions currently in contention is the "Sneak-and-Peek Notification" provision, which authorizes "search warrants [to] allow agents to search and seize evidence from a person's home without prior notification." (104) The government only needs to notify the person within a certain period of time after it conducted the "sneak-and-peak" search, (105) allowing the Government to avoid the potential downside of warning unsuspecting terrorists beforehand of a search. (106) It is this type of capability that will define the future threat the Patriot Act will have in further constricting development in areas of technology with potential national security-related interests. Congress should consider the Patriot Act's effect on scientific development in sensitive technologies as it evaluates changes to the current law.

III. POSSIBLE SOLUTIONS TO THE ADVERSE EFFECTS OF THE PATRIOT ACT UPON THE SCIENTIFIC COMMUNITY

There are multiple solutions to correcting the problems inherent in the current system under the Patriot Act relating to the interest of encouraging the development of new technologies that are beneficial to national security interests. (107) Such technologies are protected to a certain extent by the Patent Act, its amendments, and the agreements into which the United States has entered. (108) The methods prescribed by the Patent Act to deal with possible adverse effects of withholding certain patents might be helpful in addressing similar effects of the Patriot Act on the scientific community.

A. Educating Scientists of Their Inherent Rights Under Current Laws

One possible solution would be to better educate scientists and others working in fields with potential national security implications of their rights under the current patent system in the United States. Because the patent system compensates for the withholding of patents, (109) researchers in the private sector might continue their steadfast efforts if they were aware of the system's economic safeguards.

The compensation system has been in place throughout the recent era of the Patriot Act, yet the availability of the compensation system has not curbed the detrimental effects that the Patriot Act has had on the scientific community. (110) Any educational system designed to tackle the issue of incentives could be implemented in one of three places. First, researchers could learn about the compensation system as part of their educational programs. However, this would be difficult to implement since it would require inserting the relevant information into programs that have never previously considered such concerns. (111) Second, emphasis on the compensation system and its allowances in the area of national security could be emphasized in law school curriculums. The advantage of such an approach is inventors, when faced with patent related issues, should turn to their attorneys for assistance in the matter. Most attorneys practicing patent law would have been taught, and have been made aware through practice, of the applicable provisions. Finally, another option would be to rely on employers to train their employees. This might work well for larger employers who can afford to do so, as it is probably in employers' best interest to avoid Patriot Act-enabled intrusion into their business. However, such a program would probably be difficult to achieve in smaller environments where access to resources needed to develop such a program would be more limited. Likewise, individual researchers would face a similar financial constraint.

Inventors invent. Their research and progress is guided by their interests and, in the private sector, their desire to achieve a profit (at least insofar as recovering their research costs). (112) The compensation provisions of the Patent Act deal with situations where the patent application is withheld. (113) For a patent application to be withheld in the first place, the patent application must be submitted. For the patent application to be submitted, the research must be at or near completion. The problem with the effects of the Patriot Act is not that scientists think they will not be compensated for their completed inventions, but they believe the research they seek to undertake will never reach completion at all. (114) This is the essence of the dilemma created by the Patriot Act with regard to patents. It is unlikely that any education based solution would be effective in overcoming concerns about the disruption of research.

Consider a computer scientist working on a new software encryption method that will provide business users with enhanced security for their assorted digital business transactions. Better encryption of these types of transactions allows for greater assurance that sensitive financial information, such as customer details or bank account numbers and passwords, do not pass into the hands of those seeking to perpetrate fraud. (115) The financial networks of today are heavily dependent on such cryptography to provide a stable system for doing business on a global scale. (116)

Alternatively, cryptography also allows for people with more nefarious goals to hide information from government officials protecting national security interests. (117) Terrorists can use encryption technology to transmit details of plots or chemical or biological weapons. (118) Given this danger of abuse, it is not a stretch to think that U.S. federal agencies could use the Patriot Act to monitor and curb private sector research in the interest of national security. (119)

A simple search for "USA Patriot Act" on the internet reveals a staggering number of returns. (120) It is likely that the computer scientist working on a cryptography program will have heard of the Patriot Act, along with the civil liberties concerns many have raised. (121) The concern, then, becomes whether the computer scientist will be deterred from continuing work in such an important field for fear that the government may intrude upon his or her research at any time. Regardless of the level of education offered by intellectual property counsel or a collegiate or employer education program, it is likely that nothing will be reassuring enough to overcome this possibility. While the computer scientist will be entitled to compensation under 35 U.S.C. [section] 183 upon application for patent, the real concern will be never reaching that point in the research. (122) This is the gap Patriot Act reforms need to address by providing a meaningful compensation incentive for thwarted research.

B. A Research Based Registration System

Another possible solution would be to develop a registration system with the USPTO that would allow scientists to register their areas of research before they undertake them. Under such a system, scientists working on an invention they feel might have some national security implications could register, and gain approval or acknowledgement from the USPTO prior to commencement of their work. This approval or acknowledgement would allow the scientists to either continue their research unimpeded (under the presumption that the Patriot Act could allow them to be monitored at any point during their work) (123) or discontinue and surrender their research, as it falls under an area concerning national security issues.