PATENT SECRECY AUTHORITY FOR CIA

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP62-00631R000200010020-8
• Release Decision: RIPPUB
• Original Classification: S
• Document Page Count: 9
• Document Creation Date: December 16, 2016
• Document Release Date: May 3, 2005
• Sequence Number: 20
• Publication Date: November 4, 1957
• Content Type: MF

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SECRET CGC/B-7981
4 November 1957
SUBJECT : Patent Secrecy Authority for CIA
1. This is in regard to the matter of the Agency's securing the
designation of "defense agency" within the meaning of the patent laws
concerned with applications affecting the national security.
2. In accordance with the provisions of 35 U.S.C.A. Section 181
(Tab A), when notified by the chief officer of a defense agency that
publication or disclosure of an invention by the grant of a patent
would be detrimental to the national security, the Commissioner of
Patents is required to issue an order that the invention be kept secret
and to withhold the grant. Included within the term "defense agency"
are the Atomic Energy Commission, Defense Department, and such other-
department or agency of the Government as may be designated by the
President. While normally, the grant of a patent may not be withheld for
more than one year, a secrecy order issued during a period of national
emergency remains effective for the duration and six months. The order
is directed to the patent applicant and his representatives and prohibits
the disclosure of information regarding the invention under penalty of
the application being determined abandoned, or in flagrant cases,
criminal prosecution.
3. At the present time, four classified applications are pending
in the Patent Office as the result of inventions arising out of the
performance of contracts for certain research and development work of
the Technical Services Staff, DD/P. These applications have been filed
pursuant to the informal procedures we have established with a cleared
contact in the Commissioner's Office
25
These procedures are that when an item is developed which., although
classified, is considered to have patent potential, a formal application
on behalf of the employee-inventor is prepared by the contractor's cleared
patent counsel, transmitted to the cognizant Agency technical office, and
then forwarded to this Office. We hand-carry the papers tol with 25
our covering letter which states that the invention is the result of work
done under an Agency contract and that it is classified. II then 25
SECRET
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deposits the application in one of the three "secret divisions"
(mechanical, electrical or chemical, as the case may be) where,
similarly to those applications with respect to which secrecy orders
have been issued, it is processed by Patent Office personnel having
special clearances. While this informal arrangement has served the
useful purpose of getting our classified applications into the proper
channel, it will not supply a satisfactory solution to the problem
that will arise if one of these applications is ultimately determined
to be in condition for allowance as a patent. If and when that point
is reached, the Agency must then either declassify the matter or be
prepared to have a determination rendered by the Commissioner that the
application has been abandoned. This latter consequence results from
the fact that the Patent Office may not withhold the grant of a patent
merely because the application is classified.
4.. Means are available however to reduce the magnitude of the
problems that could arise between the Agency and the Patent Office in
the execution of their respective responsibilities. The most effective
instrument for this purpose would be to obtain a "defense agency"
designation for CIA under Section 181. This would of course. require
affirmative action by the White House. The Department of Justice has
been successful in this regard. It was designated a "defense agency"
by Executive Order 10457, dated 27 May 1953.
5. In the attempt to obtain data that might evidence the Agency's
need for secrecy order authority, TSS and the Office of Communications
were requested to furnish an "estimate" of the number of classified
patent applications that could be anticipated as the result of their
research programs. Understandably, they were not able to supply it--
inventions being more within the realm of hope than anticipation. They
did indicate, however, that their current programs were extensive and
that they anticipated devoting more funds and gray matter to them.
6. In addition to affording the Agency more control over its classi-
fied applications, the designation of "defense agency" would also make
available a new source of technological information. Ordinarily,
applications are held in strict confidence by the Patent Office. However,
Section 181 permits defense agency representatives to scrutinize private
applications which concern subject matter considered to be detrimental to
the national security. The practice has been for the agencies to advise`
the Patent Office of their respective fields of interest and for the
latter to notify them upon receipt of an application related thereto. Both
TSS and Commo believe that having inspection privileges would be extremely
valuable to them.
7. The possibility of the Agency processing its classified applica-
tions through the Defense Department has been considered. Several
ET
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deficiencies have been noted however. The more basic of these are that
such an approach would not only dilute Agency control over its applica-
tions but would also make the above-mentioned inspection privileges
unavailable to its personnel. In addition, having the Department issue
secrecy orders would, in all probability, require that some mechanics
be established for holding it harmless in the event of claims. Such a
demand by the Department would not be unreasonable in view of the
provisions of Section 183 (Tab B), which grants to the patent applicant
a remedy for damages sustained as a result of an order having been
issued.
8. Should it be determined that obtaining "defense agency" designa-
tion under Section 181 is desirable, I suggest that the matter be brought
to the Director's attention. I would be happy to draft the recommendation
which, I suppose among other things, should show the concurrences of TSS,
Comoro, and Logistics, and have as attachments drafts of a letter to the
Bureau of the Budget and of the proposed Order. May I discuss this with
you further?
RET
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35 U.S.C.A. Section 181
9181. Secrecy of certain inventions and withholding of patent
Whenever publication or disclosure 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 upon being so notified shall
order that the invention be kept secret and shall withhold the grant of
a patent therefor under the conditions set forth hereinafter.
Whenever the publication or disclosure of an invention by the
granting of a patent, in which the Government does not have a property
interest, might, in the opinion of the Commissioner, 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 granting of a patent thereof 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 and the Commissioner shall order that the inven-
tion be kept secret and shall withhold 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 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 grant of a
patent withheld for a period of more than one year. The Commissioner
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 so to 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 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 iipmmueebliclatttion or
disc1R &v V 51 ~ hOMBt ~'f 0020 > national
securi 1y 1 c. , a .
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35 U.S.C.A. Section 183
11183. 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 in-
vention 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 notwith-
standing 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 Court of 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 Court of 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 1+98 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. July 19, 1952,
c.95o, 11, 66 stat. 806.
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EXECUTIVE ORDER 10457
(18 F.R. 3083)
GH{REAS, Chapter 17 of Title 35 of the United States Code pro-
vides in part that whenever the publication or disclosure of any inven-
tion by the granting of a patent therefor might be detrimental to the
national security, the invention may be kept secret and the granting of
a patent withheld under the conditions and to the extent set out therein;
WHEREAS, Section 181 of the said Chapter 17 provides in part as
Whenever publication or disclosure of an inven-
tion by the granting of a patent, in which the
Government does not have a property interest, might,
in the opinion of the Commissioner, be detrimental to
the national security, he shall make the application
for patent in which such invention is disclosed avail-
able for inspection to the Atomic -nergy Commissioner,
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.
AND, WHEREAS, it appears that it would be in the interest of the
national security to make the designation hereinafter described:
NOW, THEREFORE, by virtue of the authority vested in me by the
above quoted provision of law, I hereby designate the Department of
Justice as a defense agency of the United States for the purpose of the
said Chapter 17 of Title 35 of the United States Code.
DWIGHT D. EISENHOWER
The White House
May 27, 1953
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