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

Under a registration system, scientists working in any field would, at some point during their research, become aware that it could have some effect on national security interests. At that stage, they would likely seek the advice of patent counsel in notifying the USPTO of the research. Subsequently, a preliminary application would be submitted to the USPTO for dissemination to the pertinent governmental authorities, (124) who would then issue an opinion. The USPTO would then provide an answer to the applicant with detailed opinions and instructions for furtherance of the research. The scientist would then continue the research understanding that certain government agencies or departments may be monitoring the research.

A registration system creates a number of issues. First, such a process would create an enormous burden on the USPTO that it is probably not equipped to handle. (125) It would require the USPTO (and the applicable government agency or department) to evaluate purely conjectural research without any proof or grounds that it will ever capitulate into anything useful. Second, it would not eliminate the need for the government, per the Patriot Act, to continue monitoring research in fields with potential national security implications because not all scientists and researchers would be aware of the registration system. Finally, creating such a system may have adverse incentives. Primarily, if a scientist or researcher were to apply and receive approval, it might serve as notice to be more careful about the ongoing research. Such an allowance may only serve to notify those with nefarious intentions to undertake more protective measures during their research. Additionally, registration could create a cost and time burden on the front end of the research process, which may serve to effectively halt the process altogether because of additional funding needs or delay.

There are also benefits to the registration based approach. For example, it would let scientists know from the beginning their progress would be monitored. In addition, it would advise them upfront of their likelihood to recoup research costs from the government. However, it would create a larger burden for the government--having to analyze these issues preemptively. Additionally, such a system could create incentives that would not help the government in trying to further national security policy and potentially inhibit development.

Returning again to the example of the computer scientist working on a new cryptographic software program, the problems with the registration system become more evident. Under such a system, after realizing there could be potential national security concerns with the software, the computer scientists would be required to register with the USPTO. The USPTO would then examine the research and make a cursory examination of the purpose and subject matter of the research to determine if it warrants further examination by other government agencies. 126 If it does, the USPTO would forward the documents to the appropriate agencies and await their response. (127) If the appropriate agencies determine the research does have national security implications, then the scientist would either be forced to discontinue and hand over the research or be tightly monitored as the research progresses. Undoubtedly, this will slow the research progress and create concerns about communications with colleagues and interested parties. (128) Once the government is aware of the research, the government knows it must monitor the scientist more closely and could use the Patriot Act to justify further intrusion into the scientist's regular activities. Intrusion by the government, needless to say, is generally not welcomed by most individuals and is a looming concern. (129)

The result would be a very costly and time-intensive process that cost U.S. taxpayers' money and the cryptography researcher time and expense in answering queries from the various government agencies that have interests at stake. Additionally, any sort of reporting requirements that burden the research process will only delay the innovation that the Patent Act seeks to encourage. (130) For these reasons, such a bureaucratic solution would prove to be unmanageable and only provide more disincentives to the creative process of invention.

From a public policy perspective, however, a great benefit would be obtained. Under a registration system, the government would be made aware of national security-related research ahead of time and continuously be able to monitor its progress for national security concerns. While this appears to be an attractive solution, scientists with nefarious intentions will not register because the last thing they will want is the prying eyes of the U.S. government scrutinizing their work. This leaves the United States in the exact same monitoring situation that exists today under the Patriot Act because the wrongdoers do not reveal themselves.

C. Rely on the Power of the Takings Clause

Under the Patent Act, the grant of a patent right to an inventor creates a personal property right in the patent for the limited duration. (131) Since the right conferred by the patent is treated as personal property, it is therefore protected by the Takings Clause. (132) When a patent is denied for national security reasons under 35 U.S.C. [section] 181, 35 U.S.C. [section] 183 provides an avenue for the inventor to obtain some sort of compensation for his or her loss. (133) Compensation is only available for research that ultimately leads to a patentable invention. Such is not always the case, and in general purely scientific research findings are not afforded patent protection by the USPTO.(134) Arguments have been made on both sides for either allowing such findings to be patentable or not, (135) but that is not the relevant issue with regard to the Patriot Act.

Relying on the Takings Clause of the Constitution to adequately incentivise the scientific community would require a change in policy. (136) In order for the Takings Clause to govern research thwarted by the Patriot Act, one would have to recognize the research done up to that point as personal property. Under the labor theory of property posited by John Locke, (137) one could argue research undertaken with the labor and at the expense of the researcher creates a personal property right in that research. (138)

There are a couple of problems with relying on the Takings Clause to provide the incentives necessary to overcome the effects of the Patriot Act on scientific research. First, it is difficult to say any valuable property right would ever exist in the research that was thwarted. Depending on the stage of the research when the government steps in, a viable technology may or may not have been developed. Second, taking the government to court is expensive. (139) This creates a high financial hurdle that effectively erases any potential compensation incentive for the inventor.

Returning again to the cryptography researcher, the Takings Clause solution provides an alternative on the back end of the research. Here, the scientist will not be required to do any work to ensure proper registration with the USPTO or other government agencies. In fact, the research may continue unimpeded by the government if it is not noticed. If the scientist continues unimpeded research and develops a patentable invention, the scientist will apply to the USPTO for a patent under 35 U.S.C. [section] 181 and could take advantage of the compensatory scheme provided by 35 U.S.C. [section] 183. (140) What if the research is halted before completion because of government intervention authorized under the Patriot Act? Has the research developed into a personal property right that gives the scientist a cause of action against the government under the Takings Clause? (141) How is a court to determine whether the research would have resulted in a patentable invention? How much would that right or invention be worth if it was available for commercial gain? (142) Clearly this raises a number of questions that are not readily answerable. There is a chance the scientist will have taken none of these concerns or questions into account while researching. But there is a risk these concerns will come into play at some point and have negative effects on the research. Even if the scientist is not subject to negative influences, having concerns of being monitored will deter research. (143) Industries that rely on technologies like cryptography should not have to rely on such controls to ensure future development in the science.

D. A Compensation Based Scheme as an Incentive for Private Sector Inventors to Continue Development in National Security-Related Fields

As another alternative to combating the patent problem created by the Patriot Act, Congress could provide for a compensation scheme to incentivise inventors when facing a potential disruption in research. Some of the same issues exist under a compensation scheme, but to less of an extent and in a manner that opens up research and allows it to thrive in technologically sensitive areas that otherwise would be inalterably deterred. (144) While such a novel scheme would be difficult to reconcile with traditionally contentious issues, the consequences are large for the future of technological development in the United States. (145) Congress created a compensation scheme within the Patent Act to incentivise research and development (146) and, likewise, there should be such a scheme in the Patriot Act.

1. Structure of a Potential Compensation Scheme