Developing, Disclosing and Patenting Technology during a National Emergency

ITAR prohibits the export of "defense articles" and "defense services" as set forth in the U.S. Munitions List (USML) without a license.4 EAR prohibits, in part, the export of "dual-use" items (i.e., items having both civilian and military uses) without a license.5 The disclosure and export of some technologies are governed through other agency regulations.6 Most individuals would understand an export to include shipping an item from the United States, but "exports" under ITAR and EAR also include transferring information related to covered technology to a non-U.S. person.7 In other words, one can violate ITAR or EAR by transferring information to any nonU.S. person, even if the recipient is located within the United States. [...]any information originating from the United States that is released publicly could be subject to ITAR and EAR if it pertains to technology covered by those laws. Secrecy Orders Federal law allows the U.S. Patent and Trademark Office (USPTO) to apply a secrecy order to any patent application if the USPTO or an interested government agency determines that disclosure of the subject matter would be detrimental to national security, regardless of whether the federal government has a property interest in the patent application.10 The USPTO reviews every new patent application to determine whether a secrecy order should be applied.11 Secrecy orders are relatively rare,12 but, when one is applied, the patent application will not publish or issue during the term of the secrecy order, the applicant's ability to obtain foreign patents will be severely limited, and the applicant cannot publish or otherwise disclose the subject matter of the patent application.13 Violation of a secrecy order is punishable by a fine, imprisonment, or both.14 Although applicants can appeal secrecy order determinations, these appeals are difficult and timeconsuming. Secrecy orders are renewed annually until publication of the underlying information is no longer deemed a threat to national security.15 Compensation is generally available to entities deprived of patent protection because of a secrecy order. Since the onset of COVID-19, governments around the world have been desperately searching for treatments,16 and the pandemic has national defense implications.17 The secrecy order statute applies when the disclosed technology would be detrimental to national security "in the opinion" of the USPTO or an interested government agency.