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Directory:35 U.S.C. 181:Secrecy of certain inventions and withholding of patent

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Page first featured January 23, 2010

The U.S. Patent office has a provision that allows them to slap a "national security" gag order on a patent application. Many free energy technologies have been held back through this means.

Below is a copy of the law, and a list of some breakthrough clean energy technologies thus held back.

The Invention Secrecy Act of 1951 requires the government to impose "secrecy orders" on certain patent applications that contain sensitive information, thereby restricting disclosure of the invention and withholding the grant of a patent. Remarkably, this requirement can be imposed even when the application is generated and entirely owned by a private individual or company without government sponsorship or support.
There are several types of secrecy orders which range in severity from simple prohibitions on export (but allowing other disclosure for legitimate business purposes) up to classification, requiring secure storage of the application and prohibition of all disclosure.
At the end of fiscal year 2009, there were 5,081 secrecy orders in effect. [1]

Contents

The Law

Quoting from http://www.uspto.gov/web/offices/pac/mpep/consolidated_laws.pdf
Rev. 6, Sept. 2007

35 U.S.C. 181
Secrecy of certain inventions and withholding of patent.


Whenever publication or disclosure by the publication of an application or by the grant of a patent on an invention in which the Government has a property interest might, in the opinion of the head of the interested Government agency, be detrimental to the national security, the Commissioner of Patents upon being so notified shall order that the invention be kept secret and shall withhold the publication of an application or the grant of a patent therefor under the conditions set forth hereinafter.

Whenever the publication or disclosure of an invention by the publication of an application or by the granting of a patent, in which the Government does not have a property interest, might, in the opinion of the Commissioner of Patents, be detrimental to the national security, he shall make the application for patent in which such invention is disclosed 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.

Each individual to whom the application is disclosed shall sign a dated acknowledgment thereof, which acknowledgment shall be entered in the file of the application. If, in the opinion of the Atomic Energy Commission, the Secretary of a Defense Department, or the chief officer of another department or agency so designated, the publication or disclosure of the invention by the publication of an application or by the granting of a patent therefor would be detrimental to the national security, the Atomic Energy Commission, the Secretary of a Defense Department, or such other chief officer shall notify the Commissioner of Patents and the Commissioner of Patents shall order that the invention be kept secret and shall withhold the publication of the application or the grant of a patent for such period as the national interest requires, and notify the applicant thereof. Upon proper showing by the head of the department or agency who caused the secrecy order to be issued that the examination of the application might jeopardize the national interest, the Commissioner of Patents shall thereupon maintain the application in a sealed condition and notify the applicant thereof. The owner of an application which has been placed under a secrecy order shall have a right to appeal from the order to the Secretary of Commerce under rules prescribed by him.

An invention shall not be ordered kept secret and the publication of an application or the grant of a patent withheld for a period of more than one year. The Commissioner of Patents shall renew the order at the end thereof, or at the end of any renewal period, for additional periods of one year upon notification by the head of the department or the chief officer of the agency who caused the order to be issued that an affirmative determination has been made that the national interest continues to so require. An order in effect, or issued, during a time when the United States is at war, shall remain in effect for the duration of hostilities and one year following cessation of hostilities. An order in effect, or issued, during a national emergency declared by the President shall remain in effect for the duration of the national emergency and six months thereafter. The Commissioner of Patents may rescind any order upon notification by the heads of the departments and the chief officers of the agencies who caused the order to be issued that the publication or disclosure of the invention is no longer deemed detrimental to the national security.

(Amended Nov. 29, 1999, Public Law 106-113, sec. 1000(a)(9), 113 Stat. 1501A-566, 582 (S. 1948 secs. 4507(7) and 4732(a)(10)(B)).)


35 U.S.C. 182
Abandonment of invention for unauthorized disclosure.

The invention disclosed in an application for patent subject to an order made pursuant to section 181 of this title may be held abandoned upon its being established by the Commissioner of Patents that in violation of said order the invention has been published or disclosed or that an application for a patent therefor has been filed in a foreign country by the inventor, his successors, assigns, or legal representatives, or anyone in privity with him or them, without the consent of the Commissioner of Patents. The abandonment shall be held to have occurred as of the time of violation. The consent of the Commissioner of Patents shall not be given without the concurrence of the heads of the departments and the chief officers of the agencies who caused the order to be issued. A holding of abandonment shall constitute forfeiture by the applicant, his successors, assigns, or legal representatives, or anyone in privity with him or them, of all claims against the United States based upon such invention.

(Amended Nov. 29, 1999, Public Law 106-113, sec. 1000(a)(9), 113 Stat. 1501A-582 (S. 1948 sec. 4732(a)(10)(B)).)


35 U.S.C. 183
Right to compensation.

An applicant, his successors, assigns, or legal representatives, whose patent is withheld as herein provided, shall have the right, beginning at the date the applicant is notified that, except for such order, his application is otherwise in condition for allowance, or February 1, 1952, whichever is later, and ending six years after a patent is issued thereon, to apply to the head of any department or agency who caused the order to be issued 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. The right to compensation for use shall begin on the date of the first use of the invention by the Government. The head of the department or agency is authorized, upon the presentation of a claim, to enter into an agreement with the applicant, his successors, assigns, or legal representatives, in full settlement for the damage and/or use. This settlement agreement shall be conclusive for all purposes notwithstanding any other provision of law to the contrary. If full settlement of the claim cannot be effected, the head of the department or agency may award and pay to such applicant, his successors, assigns, or legal representatives, a sum not exceeding 75 per centum of the sum which the head of the department or agency considers just compensation for the damage and/or use. A claimant may bring suit against the United States in the United States Court of Federal Claims or in the District Court of the United States for the district in which such claimant is a resident for an amount which when added to the award shall constitute just compensation for the damage and/or use of the invention by the Government. The owner of any patent issued upon an application that was subject to a secrecy order issued pursuant to section 181 of this title, who did not apply for compensation as above provided, shall have the right, after the date of issuance of such patent, to bring suit in the United States Court of Federal Claims for just compensation for the damage caused by reason of the order of secrecy and/or use by the Government of the invention resulting from his disclosure. The right to compensation for use shall begin on the date of the first use of the invention by the Government. In a suit under the provisions of this section the United States may avail itself of all defenses it may plead in an action under section 1498 of title 28. This section shall not confer a right of action on anyone or his successors, assigns, or legal representatives who, while in the full-time employment or service of the United States, discovered, invented, or developed the invention on which the claim is based.

(Amended Apr. 2, 1982, Public Law 97-164, sec. 160(a)(12), 96 Stat. 48; Oct. 29, 1992, Public Law 102-572, sec. 902 (b)(1), 106 Stat. 4516.)

Instances of National Security Provision Being Evoked in the Case of Breakthrough Clean Energy Technologies

  • Featured: Electromagnetic / Solid State >
    ERR Fluxgenerator by Noah's Ark Research Foundation - Inventor, James B. Schwartz of the Philippines, has come up with a device that allegedly puts out six kilowatts of electricity from the surroundings, using a solid state arrangement in a panel made from "left-handed material" -- Aluminum and Bismuth interwoven with coils -- tying into the Earth's frequencies. (PESWiki; Aug. 15, 2009)
    • See Part 4 of 9, from Sterling's presentation where he talks about ERR including the national security gag order.

Tom Valone Comments on National Security Gag Order

On January 21, 2010 6:18 AM Mountain, New Energy Congress advisor, Tom Valone, who works for the USPTO wrote:

I lived through that experience by my association with Adam in the early 1980's which is recounted in my Homopolar Handbook. It was the liquid NaK brush design which Adam copied from a Navy lab that got him into a classified notification.

Another example is the Stan Meyer patent to retrofit a car to run on water. When I had dinner with him years ago, he told me of the forced visit to the Pentagon with two military escorts. The brass wanted to secretize his patent so that just the military could use it. However, Stan convinced them that the people overseas who knew about his invention would then develop it ahead of the US. The ploy worked and he kept the patent in the public domain.

Of course, everyone knows the story about Ken Shoulders charge cluster technology which was almost classified. It is recounted in my latest book, "The Future of Energy: An Emerging Technology" as well as in even more detail in Lynne Taggart's book, "The Field". He sent only a few copies of his book overseas so that when the military arrived at his door, which they did, with the classification orders, he could recite the announcement, "It's too late. Books have been sold overseas."

I also recount the story of Dr. Frank Mead, the former Director of the Air Force Research Lab, in the latest video DVD, "The World Needs New Energy" on sale by http://www.LightworksAV.com who was repeatedly gagged and threatened during his career at the lab.

Lastly, does the story about 12 documents concealed by the US government until recently and examined for authenticity about the technology on the CD and DVD called "The Secret" (Directed by Ryan and Bob Wood, produced by Joe Firmage) have relevance here? IRI still sells the DVD and can supply free review copies of The Secret CD to new members of IRI.

Resources

  • http://www.fas.org/sgp/othergov/invention/index.html - Invention Secrecy (Project on Government Secrecy)
    • Invention Secrecy at Highest in a Decade - The total number of invention secrecy orders that the U.S. government imposed on patent applications rose again this year, reaching 5,081 by the end of last month, the highest figure since 1996. In Fiscal Year 2009, 103 new secrecy orders were issued, while 45 existing orders were rescinded. The overall number of orders in effect increased by about 1% over the year before. (October 22nd, 2009)
  • 181. Secrecy of certain inventions and withholding of patent - Whenever publication or disclosure by the publication of an application or by the grant of a patent on an invention in which the Government has a property interest might, in the opinion of the head of the interested Government agency, be detrimental to the national security, the Commissioner of Patents upon being so notified shall order that the invention be kept secret and shall withhold the publication of the application or the grant of a patent therefor under the conditions set forth hereinafter. (Cornell University Law School)
  • Wikipedia:Invention Secrecy Act

In the News

  • Suppression > Screcy Act >
    Invention Secrecy Still Going Strong - There were 5,135 inventions that were under secrecy orders at the end of Fiscal Year 2010, the U.S. Patent and Trademark Office told Secrecy News last week. It’s a 1% rise over the year before, and the highest total in more than a decade. In 1971, energy conversion systems were subject to review and possible restriction if they offered conversion efficiencies “in excess of 70-80%.” (Secrecy News; Oct. 21, 2010)
  • Featured: Suppression / Legal > Patent Resources >
    35 U.S.C. 181: Secrecy of certain inventions and withholding of patent - The U.S. Patent office has a provision that allows them to slap a "national security" gag order on a patent application. Many free energy technologies have been held back through this means. We present a copy of the law, and a list of some breakthrough clean energy technologies thus held back. (PESWiki; Jan. 23, 2010)

Commentary

  • (YouTube / FreeEnergyTruth; Nov. 9, 2010)

Provisional Route

On January 19, 2010 7:24 PM Mountain, NEC member, Leslie R. Pastor wrote:

Essentially, (a good reason why) inventors (in the know) only apply for provisional (pending) patents. They achieve the benefit, while avoiding the detriment. They establish priority, (date, time, p lace) while avoiding (patent status) confiscation by the military industrial complex.

- - - -

On Jan. 20, NEC member, Sterling D. Allan wrote:

If I understand correctly, the provisional only lasts 1 year. If a utility patent is not filed by then, then the provisional lapses.

- - - -

On January 20, 2010 3:32 AM Mountain, NEC member, Sepp Hasslberger wrote:

Even if a provisional patent lapses, the invention has been put into the public domain and the provisional patent application would be considered evidence of prior art, making the patenting of the same invention by others impossible or at the minimum very much more difficult.

That's how I understand the situation...

See also

- Legal - index page
- PESWiki home page

LEGAL NOTICE:
PES Network, Inc. and PESWiki are not authorized to dispense legal advice. 
The information contained herein is not presented as professional counsel,
but is presented as a resource for casual consideration.
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