Congratulations, your genius patent is now a military secret

Jim Geer filed a patent application on April 7, 2000, that describes a novel technique for tracking stealth aircraft. It was an idea that Geer, who owns a 10-person software company and has a background in physics, had been toying with for years. He had no connection to the military or defense contractors, and there was no reason to believe he was in a position to develop the technology. He thinks of his tendency to apply for patents as a way to unwind in the evenings. "Some people like football," Geer said. "I like to tinker."

It seemed likely that nothing practical would ever come of Geer’s patent application—one of over 315,000 filed that year—even if it were approved. But the U.S. Air Force preferred to take no chances and, using a little-known power, ordered Geer to refrain from speaking in public about his stealth-detection concept. The following August, the U.S. Patent and Trademark Office sent Geer a warning letter that declared his idea a national secret.

Geer was delighted. This seemed like validation that he was onto something momentous, and he figured the government would pay him to license his patent so long as he kept his mouth shut. Besides, the garrulous Alabaman already had a handful of patents to his name, and he had never heard of other inventors with government secrecy orders. “I thought, ‘Wow, that’s neat!” he recalled. That impression soon changed when he realized that, to the government, issuing the secrecy order was the end of the story. Having an idea interesting enough to become a government secret just “means you’re S.O.L,” he said.  

Just a handful of people find themselves in Geer’s position, forbidden by the government from pursuing ideas laid out in patent applications due to national-security concerns. The U.S. patent office issued 95 secrecy orders in 2015, one for every 6,628 applications received. Most concerned inventions developed by large companies specifically for the military or other government agencies. It goes with the territory, particularly when working with classified material for a government client. The secrecy can even help defense contractors keep rivals in the dark.

These gag orders are a different sort of ordeal for private inventors, about a dozen of whom file patent applications that are made secret by government mandate each year. The fate of most of these inventions remains murky—they’re secret, after all. The few secret patents that come to light have usually done so after years mired in gridlock. The government is often content to stop other people from working on an idea, even if it has no interest in pursuing the invention on its own. There is a legal process to ask the government for compensation, but it takes years and almost never pays out.

Geer decided not to take his secrecy order sitting down. “I started thinking, 'Well heck, this is costing me money!' I started writing letters to them, trying to get out of it,” he said. He wrote a business plan describing what he could do if the secrecy order weren’t stopping him, detailing the governments and corporations that might buy the technology to track planes. He had something of track record turning patents into real money, selling one idea for a TiVo-style digital-video recorder to a subsidiary of Intellectual Ventures, one of Silicon Valley’s best-known amassers of patents. His most recent patent, received in September 2015, would use the signals sent by tires to the computer within a car as a means of surveillance.

Like many inventors, Geer is an exuberant optimist. He claimed his stealth-detection patent could earn $610 million over 10 years. He asked the government for $5.6 million, or two percent of his projected gross sales over the first seven years of the secrecy order.

“They basically said go fly a kite,” Geer said.

Patent secrecy orders are unlike other forms of government secrecy in one important way. Most classified information is created by the government in the first place, while the brain of a citizen-inventor such as Geer is, by definition, private. Requiring inventors to keep quiet is arguably a violation of their constitutional right to free speech and an unlawful confiscation of their property. When faced with legal challenges to these gag orders, government agencies have quietly settled or even made public the information within the patent to invalidate the dispute.

Alex Wellerstein, a historian who studies nuclear secrecy, sees such moves as deliberate attempts to avoid creating precedent around the core constitutional issue. “The government’s legal basis for keeping private information secret is very vulnerable,” he said.

The initial invention secrecy policies came as part of a temporary wartime order during WWI. New legislation enacted on the eve of WWII followed the same model in an effort to tamp down on nuclear secrets. Immediately following the war, Washington looked to ease worries about rogue scientists by simply banning them from seeking patents related to a wide swath of atomic energy research. Congress also gave the patent office permanent authority to put gag orders on applications via the Invention Secrecy Act of 1951.

Under that law, federal agencies can ask the patent office to seal applications with orders that can be renewed annually. Any inventor who breaks a gag order can lose the patent rights or face fines and incarceration. While a handful of patent-secrecy orders are reversed each year, most seem to stay in place indefinitely. The longest-running secrecy orders date back to the early 1940s, and Wellerstein believes they almost certainly relate to nuclear technology. Other fields that tend to be susceptible are cryptography and communications technology for guiding weapons.

“The secrecy is more sexy than the invention in many cases”

The government’s use of secrecy orders has ebbed and flowed over time. The number of new orders issued per year dropped at the end of the Cold War and hasn't ticked back up. But another change, in the years since 2001, has seen a drop in the number of secrecy orders that are rescinded. There are currently more than 5,500 secrecy orders on patent applications, the most since 1993.

Private inventors who have asked for compensation haven’t been successful, thanks to an ironclad Catch-22: The inventions are secret and so, by definition, lack a market because the ideas in the patent applications can't be publicly revealed. That makes it impossible to demonstrate how much money is being lost by the impact of government secrecy. Government lawyers facing these cases have routinely argued that there is no evidence that the inventors would have made any money from their ideas. It's easy to dismiss claims such as those Geer laid out in his business plan as fanciful.

James Linick, an engineer living in Florida, sued the Army for $2.5 million after it put a secrecy order on one of his patent applications. In court documents, he cited past work with European arms makers and argued that he was having trouble landing new contracts because of the secrecy order. The government responded by saying that Linick's failure to land business showed that his ideas probably weren’t quite as lucrative as he imagined. Thomas Wheeler, a judge in the U.S. Court of Federal Claims, sided with the government. The inventor had produced evidence of a bright idea, the judge wrote, but he had “not produced evidence of a valuable idea.” (Linick, through his lawyer, declined to comment.)

A more sweeping challenge to the secrecy law came recently from two engineers from Detroit's water department with an idea for how to confuse heat-seeking missiles. Budimir and Desanka Damnjanovic, a married couple, wanted to patent a method for spraying liquid from the back of an airplane. This, they said in their application, would confuse anti-aircraft weapons systems. The Patent Office issued a secrecy order in 2009, and the Damnjanovics began the administrative process of applying for compensation.

The government responded by sending FBI agents to their house to make sure the inventors understood the seriousness of the situation, according to both court documents and the couple's lawyer, Hattem Beydoun. The Air Force, meanwhile, dragged out its response to their request for compensation. It took five years for the Damnjanovics to exhaust their options. The couple sued in 2014, claiming that the Invention Secrecy Act violated the First Amendment and the Fifth Amendment. The government, in turn, lifted the secrecy and moved to have the case dismissed. “There is no longer any ‘live’ controversy regarding any alleged restriction on their free speech rights,” the government said in a court filing.

The official reason given for not renewing the secrecy order was that the idea wasn’t viable. The technique in the patent application by the Damnjanovics would be useful for only a few airplanes, the government contended, and the equipment needed to implement their design would be cumbersome. Given all this, the  patent application posed no threat to national security. These things were probably true a few years earlier.

The Damnjanovics' lawyer questions the timing of the Air Force’s sudden skepticism. “What happened that caused you to change your mind? I’ll tell you what happened. It’s that you got sued,” Beydoun said.

The inventors from Michigan agreed in December to a $63,000 settlement. In the 65-year history of the Invention Secrecy Act, this stands out as a rare instance in which the government paid private inventors for a secret patent application. In doing so, the government put an end to a lawsuit that could have developed into a fundamental threat to the law itself.

There’s no clear evidence to suggest that the Invention Secrecy Act is holding back the march of technological progress. Steven Aftergood of the Federation of American Scientists keeps track of the inventions whose secrecy orders are lifted; most, he said, are notable for being perfectly ordinary. “Nobody has invented warp drive or time travel. They’re fairly mundane inventions that may have some relevance to the military,” he said. “The secrecy is more sexy than the invention in many cases.”

Geer eventually convinced the Air Force to lift the secrecy order on his stealth-tracking idea, and he received a patent in 2011. Nothing ever came of it, although he insists this is mostly because he lost the chance to market it during the decade his invention was kept secret. This spring he filed an application for an additional patent related to a technology that tracks drones that stray too close to airports. Unlike his patent application from 2000, it doesn’t mention the word “stealth,” a distinction he hopes will keep the Air Force away from it.  

While Linick and the Damnjanovics felt victimized by their experiences, Geer describes his brush with patent secrecy as kind of a romp. Sure, he thinks it cost him money. But it’s the only time in his career he felt as if he almost hit it big. In his office, he has framed copies of all of his patents. His no-longer-secret secrecy order is framed, too. “The stealth patent is kind of my favorite,” he said.