The Invention Secrecy Act of 1951, codified at 35 U.S.C. sections 181-188, grants the United States government the authority to classify any patent application deemed relevant to national security. The inventor is gagged under criminal penalty. The patent is withheld. The technology does not reach the market.
As of fiscal year 2025, 6,543 secrecy orders are active, as reported by the Federation of American Scientists.
How It Works
When a patent application is filed with the USPTO, it is reviewed by the Armed Services Patent Advisory Board against a classified list of technology categories — the Patent Security Category Review List (PSCRL). If the invention matches a category, the application is referred to the relevant defence agency.
A secrecy order can be imposed for one year and renewed indefinitely. The inventor is prohibited from disclosing the invention — including to potential investors, business partners, or the public — under penalty of forfeiture of the patent and potential criminal prosecution.
The Act applies to purely private inventions. No government contract is required. No government funding is required. A private citizen, working in a private laboratory, with private money, who files a patent on a device that the defence establishment considers sensitive, can be silenced under criminal penalty, indefinitely, with no meaningful recourse.
The Numbers
The Federation of American Scientists' Secrecy News project tracks the annual statistics:
- FY2024: 356 new secrecy orders imposed — the highest in over a decade
- FY2010-2023: typically 100-130 new orders per year
- Cumulative active orders (FY2025): 6,543
- Historical total since 1951: thousands more have been imposed and later rescinded
What Technologies Are Classified?
The government does not disclose the subjects of secrecy orders. The patent numbers are secret. The technology descriptions are secret. The identities of the affected inventors are, in practice, secret — because the inventors cannot publicise their situation without risking prosecution.
The PSCRL itself was partially leaked in the 1970s and included categories covering nuclear technology, cryptography, and — notably — advanced propulsion and energy technologies.
The Constitutional Question
A secrecy order effectively takes the inventor's property right without compensation. Legal scholars have argued this constitutes an uncompensated taking in violation of the Fifth Amendment. The argument has never prevailed because no court has been willing to hold the Act unconstitutional in the face of national security claims.
The full legal and institutional analysis is in Chapter 8: The Architecture of Secrecy, part of The Ether Conspiracy — free to read online.
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