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BLOG@IP::JURPatent Attorney Axel H Horns' Blog on Intellectual Property Law.
Saturday, September 06, 2003Patents, State secrets, and the threat of terrorism.Secret or "classified" patents are always something like "foreign matter" in the system of patent law. Normally the way a patents works can be described as giving a temporary monopoly in exchange for public disclosure. However, virtually all countries with a patent law have an exception implemented therein: For the sake of "national security" or something like that a "secret patent" can be granted which conveys a monopoly without public disclosure.For example, Sect. 50 of the German Patent Act says that if a patent is sought in respect of an invention which is a State secret, the Examining Section shall order ex officio that no publication shall take place. The competent supreme federal authority shall be heard before the order is issued. The latter authority may request that an order be issued. In accordance with Section 93 of the German Penal Code, State secrets are facts, objects or knowledge which are only accessible to a limited category of persons and must be kept secret from foreign powers in order to avert a danger of serious prejudice to the external security of the Federal Republic of Germany. Now, Mr. Hans-Jürgen Breith, a former Head of Ministerial Department, has published an article in a German IP print medium (GRUR 2003, No. 7, pages 587 to 592) questioning the current legal prerequisites for issuing a secrecy order with respect to a German patent application. Mr. Breith argues that in view of the threat of globalised terrorism more patent applications should be covered by secrecy orders than what is already done today. In particular, he complained that in general the German practise is such that only patent applications with a subject-matter classified at least at the "secret" level are deemed to be eligible for a secrecy order. Moreover, he argued, only matters which constitute a danger to the external security can have the status of a "State secret". Terrorism does, however, not always affect the external security, Mr. Breith argues. So, Mr. Breith wants to see the legal prerequisites for a secrecy order in German patent law be decoupled from the concept of the "State secret" as defined in the German Penal Code. Instead, he would prefer a regulation within the German Patent Act giving a basis for issuing secrecy orders if the public disclosure of a patent application would create a danger to the external or internal security of the Federal Republic of Germany. So, also threats against the internal situation would also be covered and, moreover, the requirement "of serious prejudice" would be eased. I fear that such amendment to the German law would turn out to be a Pandora's box. Mr. Breith's proposal is overbroad and gives the authority far too much room for issuing secrecy orders. I think there are immense numbers of patent applications, the technical teaching of which, if misused, could be seen as a threat to the external or internal security of the Federal Republic of Germany. This holds e.g. with regard to the chemistry of explosives. But, no doubt, even IT matters might fall under this category, e.g. cryptography-related patent applications or security instruments for the operation of the Internet. And, finally, I think the proposal to decouple patent secrecy orders from State secrets might effectively turn out to be a penalisation of patent applicants compared with non-applicants - if some sensible subject matter below the level of a State secret is not in a patent application, the inventor and the applicant may freely speak over the invention if they desire so. But once the patent application is filed and classified they would be silenced.
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