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

(115.) See Thawte, Importance of Cryptography [hereinafter Cryptography], http://www.thawte.com/cryptochallenge/guides/importanceCrypto.pdf (last visited Apr. 1, 2006).

(116.) Jane K. Winn, Catalytic Impact of Information Technology on the New International Financial Architecture, 34 INT'L LAW. 137 (2000). See also Cryptography, supra note 115.

(117.) Interview by Allen Noren with Jonathan Knudsen, author of Java Cryptography, http://java.oreilly.com/news/knudsen_0398.html (last visited Apr. 1, 2007) (stating that "surely thieves and terrorists can use cryptography to keep their plans a secret").

(118.) See id.; David Plotz, Cryptography, SLATE, Oct. 11, 1996, http://www.slate.com/id/1031.

(119.) USA PATRIOT ACT, Pub. L. No. 107-56, [section] 213, 115 Stat. 272, 285-86 (2001) (codified in scattered titles of U.S.C.).

(120.) A search on Google on April 1, 2007, returned 1,640,000 results and a search on Yahoo on the same date and topic returned 5,400,000. Google Search, http://www.google.com/search?hl=en&q=USA+Patriot+Act (last visited Apr. 1, 2007); Yahoo Search, http://search.yahoo.com/search?p=USA+Patriot+Act&fr=FP-tab-web-t& toggle=1&cop=&ei=UTF-8 (last visited Apr. 1, 2007).

(121.) Adding the terms "civil liberties" to the search terms "USA Patriot Act" decreased the results on Google to 1,200,000 and on Yahoo to 1,480,000. Google Search, http://www.google.com/search?hl=en&lr=&q=USA+Patriot+Act+civil+liberties (last visited Apr. 1, 2007); Yahoo Search, http://search.yahoo.com/search?p=USA+Patriot+Act+civil+ liberties&ei=UTF-8&fr=FP-tab-web-t&fl=0&x=wrt (last visited Apr. 1, 2007).

(122.) Patents cannot be applied for until the invention has actually been made because part of the patent application is a personal attestation that the applicant is in actual possession of the invention at the time. 35 U.S.C. [section] 115 (2000); 37 C.F.R. [section] 1.131 (2005).

(123.) See Shelton & Hall, supra note 71 (describing the monitoring and surveillance provisions in the Patriot Act).

(124.) The pertinent authorities would likely be similar to those listed in the Patent Act, that is, the "Atomic Energy Commission, the Secretary of Defense, and the chief officer of any other department or agency of the Government designated by the President as a defense agency of the United States...." 35 U.S.C. [section] 181 (2000).

(125.) The USPTO is already overburdened simply by the number of applications it handles every year. The Cost of Ideas, ECONOMIST, Nov. 11, 2004, at 71. The number of applications has been on the rise since the system's inception and the USPTO has difficulty coping with the annual increase, as evidenced by the steady rise of the average period of time it takes to examine patent applications. Id. As of 2004, the number of applications submitted has grown by six percent per year, and the average wait time for an applicant was twenty seven months. Id.

(126.) This is similar to the investigation of patents for national security concerns. See 35 U.S.C. [section] 181 (laying out the process for investigating patents for national security concerns). Because the language of the Patriot Act can be interpreted as highly expansive as to which types of technologies could fit under this description, this would effectively create an entirely new set of patent-type examinations for the USPTO. See, e.g., Bookstores Buck Patriot Act, CBS News, Feb. 21, 2003, http://www.cbsnews.com/stories/2003/02/21/national/main541464.shtml (highlighting the broad powers the Patriot Act endowed on the U.S. government).

(127.) REVIEW OF APPLICATION, supra note 26.

(128.) See Raymond Zilinskas & Jonathan Tucker, Limiting the Contribution of Scientific Literature to the Biological Weapons Threat, J. HOMELAND SECURITY, Dec. 2002, available at http://www.homelandsecurity.org/journal/Articles/Tucker.html.

(129.) See, e.g., Press Release, People for the American Way, Civil Liberties Advocates' Worst Fears Realized with Patriot Act Scandal (Mar. 9, 2007), http://www.pfaw.org/pfaw/general/default.aspx?oid=23672 (discussing how national security letters authorized under the guise Patriot Act trump civil liberties).

(130.) ADELMAN ETAL., supra note 1, at 9-10.

(131.) 35 U.S.C. [section][section] 261, 154.

(132.) Evan Ackiron, Note, Patents for Critical Pharmaceuticals: The AZT Case, 17 AM. J. L. AND MED. 145, 153 (1991).

(133.) 35 U.S.C. [section] 183.

(134.) Robert P. Merges, Property Rights Theory and the Commons: The Case of Scientific Research, 13 SOC. PHIL. & POL'Y 145, 152 (1996) [hereinafter Property Rights Theory].

(135.) See id.

(136.) Weiss v. United States, 146 F. Supp. 2d 113, 123 n.7 (1st Cir. 2001) (citing Constant v. United States, 16 C1. Ct. 629, 634-35 (1989), aff'd, 884 F.2d 1398 (Fed. Cir. 1989) ("It is settled that 'the issuance of a secrecy order is not per sea taking and that diminution of [an] invention and inability to exploit [the] invention are compensable elements of a claim under 35 U.S.C. [section] 183, not under the Fifth Amendment."')).

(137.) JESSE DUKEMINIER & JAMES KRIER, PROPERTY 15-16 (5th ed. 2002).

(138.) Id.

(139.) See, e.g., Public Expression of Religion Act, WoodMore Village, http://www.woodmoorvillage.org/2006/10/public_expressi.html (Oct. 2, 2006).

(140.) See 35 U.S.C. [section][section] 181, 183 (2000).

(141.) Cf. Property Rights Theory, supra note 134, at 151 (explaining that most scientists would prefer only informal property rights at this stage).

(142.) The damages available under 35 U.S.C. [section] 183 are limited to those that are concrete and provable, not those that the inventor speculates might eventually arise. Weiss v. United States, 146 F. Supp. 2d 113, 127 (1st Cir. 2001).

(143.) See AM. ASS'N OF UNIV. PROFESSORS (AAUP), ACADEMIC FREEDOM AND NATIONAL SECURITY IN A TIME OF CRISIS 34-35 (2003), available at http://www.aaup.org/NR/rdonlyres/5D2D9A5A-1935-4DF4-B402-57525CAF8CDD/ 0/Post911.pdf.

(144.) See id. (stating that national security concerns should not compromise scientific freedom).

(145.) See generally Encaoua et al., supra note 112, at 2-3 (demonstrating the various impacts of patent law on various technologies).

(146.) See Robert P. Merges & Glenn Reynolds, The Proper Scope of the Copyright and Patent Power, 37 HARV. J. LEGIS. 45, 47 (2000) (citing U.S. CONST., art. I, [section] 8, cl. 8).

(147.) WHITE HOUSE I, supra note 9.

(148.) 35 U.S.C. [section] 181 (2000).

(149.) See U.S. DEP'T OF JUSTICE, REPORT FROM THE FIELD: THE USA PATRIOT ACT AT WORK 1 (2004), available at http://www.lifeandliberty.gov/docs/071304_report_from the_field.pall (detailing how the Patriot Act provides the key legal tools necessary to effectively fight terrorism).

(150.) See discussion supra Part III.C.

(151.) See supra note 83 and accompanying text.

(152.) See supra note 5 and accompanying text.

(153.) 35 U.S.C. [section][section] 181, 183 (2000).

(154.) See generally Shelton & Hall, supra note 71 (discussing the impact of the Patriot Act on existing laws and the expansion of the government's power).

(155.) See USA PATRIOT ACT, Publ. L. No. 107-56, 115 Stat. 272 (2001) (codified in scattered titles of U.S.C.).

(156.) See supra notes 31-37 and accompanying text. For instance, the scientist will be left to battle the government over the Takings Clause, where the argument will center on whether the research was a valid personal property right by government intrusion. See supra text accompanying notes 142-44.

(157.) ADELMAN ET AL., supra note 1, at 11.

(158.) COUNCIL ON COMPETITIVENESS, U.S. COMPETITIVENESS 2001: STRENGTHS, VULNERABILITIES, AND LONG-TERM PRIORITIES i (2001), http://www.compete.org/pdf/Highlights.pdf.

(159.) Steven L. Nichols, Fundamentals of Intellectual Property, IEEE-USA TODAY'S ENGINEER ONLINE, Nov. 2004, http://www.todaysengineer.org/2004/Nov/IPfundamentals.asp.

(160.) David Malakoff, New U.S. Rules Set the Stage for Tighter Security, Oversight, 298 SCI. 2304, 2304 (2002).

(161.) See Congressman Lamar Smith, Smith's Floor Statement on the Patent and Trademark Office Fee Act (H.R. 1561), Mar. 3, 2004, available at http://lamarsmith.house.gov/news.asp?FormMode=Detail&ID=366 (noting that "[w]ithout a strong PTO our economy would be devastated").

(162.) WHITE HOUSE I, supra note 9.

(163.) There is evidence that the encouragement of private sector research and development in countries can deter the spread of terrorism. KIM CRAGIN & PETER CHALK, TERRORISM & DEVELOPMENT: USING SOCIAL AND ECONOMIC DEVELOPMENT TO INHIBIT A RESURGENCE OF TERRORISM 33-36 (2003), available at http://www.rand.org/pubs/monograph_reports/MR1630/MR1630.pdf.

(164.) See, e.g., Bioshield II, supra note 18.

S. Scott Pershern, J.D. Expected, University of Houston Law Center (2007); B.S. in Biomedical Engineering, Texas A&M University (1998). This Comment is dedicated to my loving wife, Dr. Lindsey Pershern, who has been extremely patient and supportive throughout this process. I thank my parents and family for their support throughout law school and Ted Prouty for his creative titling advice. Finally, I give special thanks to the hard working members of the Houston Journal of International Law for their commitment and dedication to the production of a quality piece of legal scholarship. This Comment received the Professor Jordan Paust Writing Award.