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

How should an incentive scheme for compensating researchers for lost research when thwarted by national security interests be structured? The best answer lies in compensating researchers for lost time and money while still encouraging further development. How such a compensation system should be structured needs to take into account several concerns.

First and foremost, how should any research or invention be valued? Where should the line be drawn and how should the value of the work be evaluated? Some research may lead to patentable and profitable inventions, and others may not. It is a difficult estimation that would require much foresight on the part of the USPTO and the inventor. Nonetheless, it is an important enough topic to garner significant debate.

Second, addressing the underlying concern of deterring terrorist activity is of primary importance. (147) Weighing heavily on any compensatory incentive should be the interest of keeping the United States safe from domestic terrorism. Any modification to the Patriot Act made in the interest of promoting the sciences and providing a compensatory scheme similar to the Patent Act needs to address the terrorism issue. Specifically, in addressing the scientific disincentive, the Patriot Act needs to account for research activities that represent terrorist activities. Certainly, such research is not of the type or nature deserving of compensation because of disruption by Patriot-Act-enabled intrusion. Like the registration based system, there would necessarily be an evaluation of the research's threat to national security. However, the threat would be evaluated only upon submission of a patent application, (148) thus involving no more research on the part of the USPTO and yielding the same results.

The compensatory scheme needs to take into account the interests of national security. The Patriot Act was negotiated and enacted with valid concerns (149) that the compensatory scheme should not ignore. Any solution should embody the notion terrorist activities should not be allowed to thrive. A revision of the Patriot Act should specifically exclude from the compensatory scheme research activities that arise from goals based on terrorism. While it still affords the government the same liberty in deterring such activity, it avoids the negative consequences aforementioned. The U.S. intelligence community would still have the ability to deter terrorist activity when identified. But it would have to act with an understanding scientists may have to be compensated for their work based on an underlying property right. (150)

2. The Effect of Incentives on the Scientific Community

Inventors need to know the fruits of their efforts will one day be rewarded. The scientific community is burdened by the concern their efforts will go unrewarded because of the effects of the Patriot Act. (151) Congress has already responded to such concerns by enacting the Patent Act and should be interested in imputing these concerns to the Patriot Act. (152) There needs to be an incentive for continuing research in fields potentially affecting national security interests.

Upon its inception, 35 U.S.C. [section] 183 was intended to incentivise development in fields of national security concern. (153) The Patriot Act works against this and contains provisions that enable the same type of discretion afforded to the government. (154) Ideally, such discretionary capability would be coupled with an allowance for compensation for such applications. But no such provision resides in the Patriot Act. (155)

Revisiting the cryptography researcher hypothetical is helpful for illustration. Under current law, the researcher would be forced to resort to a number of different avenues to obtain an equitable result, none of which are favorable in the context of encouraging the continuation of research. (156) In the spirit of 35 U.S.C. [section] 183, the researcher should be afforded the possibility of compensation as an incentive. Under such a scheme, where the researcher (or a sponsoring entity) would serve to profit from the innovation, the compensation would serve as an additional incentive to create and further the art. This is the exact goal of the Patent Act (157) and is the exact reform needed of the Patriot Act.

IV. CONCLUSION

Since its inception, the innovations of scientists have driven the United States to economic dominance. (158) The patent regime has provided the structure and security necessary to encourage ingenuity. (159) Justified and growing concerns over national security have resulted in regulations that have adverse effects on the scientific community. (160) These adverse effects on the encouragement of new developments, which the Patent Act seeks to avoid, (161) need curing. Encouraging the development of technology in national security-related fields should be of the utmost concern to legislators seeking to maintain the edge the United States has enjoyed for the past half century. (162) National security interests weigh heavily, but robbing inventors of their rights without adequate compensation could deter development in certain fields and have an equal or worse effect on national security. (163) Private development of new technologies has become a chief driver of innovation in today's marketplace. (164) If, in the interest of national security, the government takes away the rights of private sector inventors while leaving intact those of public interest employment, the incentive to create and innovate disappears for the entrepreneur minded inventor. Currently, private sector inventors research with the knowledge that the patent system is in place to reward them for their efforts, whereas government employed researchers are not concerned with such issues since they are researching for the benefit of the country. The United States should be acutely aware of the possible damaging effects of continued Patriot Act-driven monitoring of the scientific community, and it should take measures to ensure that protecting national security does not serve to damage national security in the long term.

(1.) The power of Congress to create the U.S. patent system was contemplated in the U.S. Constitution and was used to create the Patent Act of 1790 (the Patent Act). See MARTIN J. ADELMAN ET AL., CASES AND MATERIALS ON PATENT LAW 8-11 (2d ed. 2003).

(2.) Id. at 10.

(3.) Diamond v. Chakrabarty, 447 U.S. 303, 307 (1980); Graham v. John Deere Co., 383 U.S. 1, 6 (1966) ("Innovation, advancement, and things which add to the sum of useful knowledge are inherent requisites in a patent system which by constitutional command must 'promote the Progress of ... useful Arts.' This is the standard expressed in the Constitution and it may not be ignored.").

(4.) See Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470, 481 (1974) ("When a patent is granted and the information contained in it is circulated to the general public and those especially skilled in the trade, such additions to the general store of knowledge are of such importance to the public weal [sic] that the Federal Government is willing to pay the high price of ... exclusive use for its disclosure, which ... will stimulate ideas and the eventual development of further significant advances in the art.").

(5.) 35 U.S.C. [section] 183 (2000).

(6.) Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT)Act of 2001, Pub. L. No. 107-56, 115 Stat. 272 (codified in scattered titles of U.S.C.).

(7.) See Michael P. O'Connor & Celia M. Rumann, Into the Fire: How to Avoid Getting Burned by the Same Mistakes Made Fighting Terrorism in Northern Ireland, 24 CARDOZO L. REV. 1657, 1739 (2003) (discussing how the government has expanded monitoring and investigatory powers after the attacks of September 11, 2001).

(8.) See Diana Jean Schemo, Scientists Discuss Balance of Research and Security, N.Y. TIMES, Jan. 10, 2003, at A12 (chronicling scientists' discussion of how to balance the desire to share findings with national security concerns).

(9.) See generally WHITE HOUSE, THE NATIONAL SECURITY STRATEGY OF THE UNITED STATES OF AMERICA [hereinafter WHITE HOUSE I], http://www.whitehouse.gov/nsc/nss/2002/nss.pdf (discussing current threats to national security).

(10.) See Linda R. Cohen & Roger G. Noll, Is U.S. Science Policy at Risk? Trends in Federal Support for R&D, 19 BROOKINGS REV. 10, 10-15 (2001), available at http://www.brookings.edu/press/review/winter2001/cohen.htm (noting the trends in federal support and private industry support of technology development).

(11.) ADELMAN ET AL., supra note 1, at 10-11. These laws were originally enacted by the Patent Act and have since been modified multiple times in accordance with shifts in national and international intellectual property protection, as well as world events. See id. at 11-17 (discussing changes to the patent system since the Patent Act).

(12.) See id. at 17.

(13.) 35 U.S.C. [section][section] 1-376 (2000). An invention is only patentable if it is of patentable subject matter and exhibits utility, novelty, and nonobviousness. Id. [section][section] 101-103.

(14.) A patent protects the invention for "20 years from the date on which the application for the patent was filed in the United States...." Id. [section] 154.

(15.) ROBERT P. MERGES ET AL., INTELLECTUAL PROPERTY IN THE NEW TECHNOLOGICAL AGE 24 (3d ed. 2003).