I. INTRODUCTION
II. BACKGROUND
A. The Patent Act and Its Consideration of National
Security-Affecting Patents
B. International Agreements Affecting the
Transferability of Intellectual Property Rights
1. The Patent Cooperation Treaty (PCT)
2. Agreement on Trade-Related Aspects of
Intellectual Property Rights (TRIPS)
C. The Patriot Act and the Its Effect on Capabilities
of the Federal Government
1. Purpose of the Patriot Act
2. Effects of the Patriot Act on the Development of
National Security-Sensitive Technologies
3. Current Developments and Potential Changes
to the Patriot Act
III. POSSIBLE SOLUTIONS TO THE ADVERSE EFFECTS OF
THE PATRIOT ACT UPON THE SCIENTIFIC COMMUNITY
A. Educating Scientists of Their Inherent Rights
Under Current Laws
B. A Research Based Registration System
C. Rely on the Power of the Takings Clause
D. A Compensation Based Scheme as an Incentive for
Private Sector Inventors to Continue Development
in National Security-Related Fields
1. Structure of a Potential Compensation Scheme
2. The Effect of Incentives on the Scientific
Community
IV. CONCLUSION
I. INTRODUCTION
The United States has long had a well developed system in place to
protect the rights of inventors and encourage the development of new
technologies. (1) The system was first put in place by the Patent Act of
1790 (the Patent Act), and the policies it embodies are clear. (2) One
chief policy at play is the encouragement of the development of new
technologies that provide social benefits on a broad scale. (3) The
presence of a patent system encourages inventors to share their
discoveries with the rest of the scientific community while guaranteeing
them an economic return on their precious time and resources that are
committed to the development process. (4) The right to profit from
one's patented inventions should include the right to profit from
the use of that invention overseas. Inventors run into a problem,
however, when their inventions have potential national security
implications. The Patent Act, in its current form, contemplates this
dilemma and provides compensation for inventors when their patent
applications are denied for reasons of national security. (5)
A compensation system does not exist, however, when inventions are
thwarted for national security reasons under the Patriot Act. (6)
Instead, the government is essentially given a "free pass" to
monitor and detect national security issues at will, (7) chilling
development in technological fields that might tread on interests of
national security. (8) The Patriot Act needs a compensation scheme to
provide the incentives that would encourage private sector development
of such technologies. While national security concerns should sometimes
trump the privacy concerns in a world where terrorist threats are
constant, (9) we live in a technological age where scientists are pushed
toward the private sector as intellectual property regimes expand. (10)
II. BACKGROUND
The United States has laws that domestically govern the grant of
patents to individuals for their inventions. (11) Additionally, it has
entered into multinational agreements to help further protect the rights
conferred by the U.S. Patent and Trademark Office (USPTO) abroad. (12) A
cursory examination of the laws and agreements is important in trying to
understand the effects of the Patriot Act on the patent system.
Primarily, it is of importance to discuss the current laws in place that
grant patent rights in sensitive technologies, as well as their
potential enforceability overseas, assuming the patents are available to
provide for a commercial benefit.
A. The Patent Act and Its Consideration of National
Security-Affecting Patents
Title 35 of the U.S. Code is the current embodiment of the Patent
Act. (13) The Patent Act confers on inventors a fixed-duration monopoly
for the use and manufacture of their inventions. (14) The driving force
behind the Patent Act (as well as the driving force behind the various
revisions to it) was to promote and encourage the creation of new
inventions. (15) The execution of this purpose is carried out in at
least two ways. First, granting inventors a monopoly, even for the
finite period of twenty years, provides inventors with an opportunity to
reap the rewards of their research and labor. (16) In an ideal world,
this incentive would not be necessary, and inventors would simply invent
for the sake of invention. (17) In a capitalist economy, however, such
an incentive is necessary to effectively encourage new development. (18)
Second, a patent grant from the USPTO is conditioned on publication of
the invention. (19) This publication includes the composition of the
invention (identified through its patent claims), (20) its intended use,
and other detailed specifications that dictate the operation of the
patent and its best form. (21) Because the information is available to
the public, other inventors have access to the patent and are able to
use it, licensed or not, (22) to further the art in the particular
field. (23) Both the grant of exclusivity and the publication
requirement together encourage development and production of new
inventions. (24)
Counterbalancing the goal of patent law of promoting the
development of new ideas and inventions is the U.S. government's
rationale from keeping some inventions out of the public eye, both
domestically and internationally. (25) Specifically, some patents
received by the USPTO involve technologies that potentially could be
adverse to national security interests. (26) These situations are
governed by 35 U.S.C. [section] 181, and provide the Commissioner of
Patents the responsibility for identifying such inventions. (27) Upon
identification, the patent application for the invention in question is
then made "available for inspection to 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." (28) In essence, one
government department's discretionary authority gives way to
another's discretionary authority. If, in the particular agency or
department's opinion, the invention could be a potential threat to
national security, the patent is withheld. (29) The inventor of the
sensitive technology then would not receive the benefits conferred by
the grant of a patent, including the exclusive right to commercially
produce and sell the invention domestically or internationally. (30)
This effectively removes the incentive for nongovernment employees to
develop new and potentially highly useful art in the field. To deal with
negative incentives, 35 U.S.C. [section] 181 is coupled with 35 U.S.C.
[section] 183, entitled "Right to compensation." (31) It
affords an individual whose patent has been withheld under an order of
secrecy the right to apply to the head of the agency or department
"for compensation for the damage caused by the order of secrecy
and/or for the use of the invention by the Government, resulting from
his disclosure." (32) After this power has expired, the right to
compensation is still enforceable via suit in the U.S. Claims Court.
(33)
The Patent Act is the embodiment of the longstanding U.S. social
policy to foster invention and scientific progress. (34) Its foundation
of domestically enforceable rights includes situations where the
government's interest in national security heavily outweighs the
individual's right to leverage his or her invention to the greatest
extent possible during the patent's monopoly period. (35)
Compensation still remains as an incentive to invent under such
circumstances and should not be ignored as a casualty of the interests
of national security that 35 U.S.C. [section] 181 seeks to protect. (36)
Economic interests have helped give the United States the dominant
position it currently enjoys, (37) and the United States should not turn
its back on those interests even in light of current world politics.
B. International Agreements Affecting the Transferability of
Intellectual Property Rights
While the United States has protected patent rights within its
borders through the Patent Act, (38)