Mariela Gunn
Office: PAR 102
Hours: M 4-5 & Th 10-12
+ individual appointments
Secrecy Power Sinks Patent Case
Submitted by Jessica Thrailkill on 2 December, 2005 - 4:56pm.
Security Blanket Blog
Advancing technology is plunging the world of ideas into a runaway arms race. More ideas are being created, and more emphasis and wealth placed on the ownership of those ideas. As the same time, courts are expanding what can be patented. This forces many companies into a defensive maneuver to patent ideas they would not have otherwise. This in turn forces others to do the same. It has never been so crucial that our ideas are anchored in the law. I was involved with Wired magazine when Wired invented the click-through ad banner on the web. Even if any of us had known this idea was patentable, I do not think we would have patented it. If we invented it now, we would have been practically forced to patent it just so some other company wouldn’t. However, patents do not give you much protection if you are the little guy, especially in this case when you are up against a large corporation involved with a government agency. This situation is fairly complicated but I’ll try to briefly explain it for those who are not informed.
Philip French and two colleagues, Charles Monty and Steven Can Keiren, designed and patented a device called the Crater Coupler, which is a connector used to seamlessly link one pipe or cable to another, without standard hardware like nut threads or bolted flanges. After spending a year developing the technology with Lucent Technologies to use in an underwater environment, Lucent informed French that because the application was being used by a government agency for ’secret purposes’ they would not have to pay French for continued use of his design. Lucent eventually offered the inventors $100,000 for the right to produce 1,000 wetmate couplers. French, who had recently retired, was satisfied with the offer but his partners were not, so they bought him out for $30,000. The partners then sued Lucent for alleged patent infringement, trade-secret theft and breach of contract. The patent infringement charge was dismissed because, under federal law, a “company can’t be sued for infringement if the development was for the exclusive use of the government.” The government intervened and asserted the state secret privilege when the plaintiffs tried to subpoena 26,000 documents to support their claim. Crater was not allowed to pursue legal inquiry regarding the government’s use of their coupler because it could clue in adversaries of the United States to highly classified operations and programs which could greatly damage national security.
The state secrets privilege has been cited in a number of cases. Some of these for seemingly unjust purposes, but the privilege has led to the termination of litigation in almost every case in which it is invoked. I agree with Weaver that although it is a rare occasion that the privilege is invoked for evil purposes, the real problem is that we cannot tell when that is the case. As Coffin asserts, the increased use of the state secrets privilege illustrates that “information is a weapon in the modern day and age,” which is a major concern for national security.
I think that in a case like this one, Philip French made a wise decision to take his $30,000 and split, rather than trying to fight the government in a battle he could not win.