George Mason University Antonin Scalia Law School

Innovation and the Military

Summer 2018 M-VETS Student-Advisor Matt Sim

The United States military is no stranger when it comes to innovation. Some of the greatest technological innovations in human history had their beginnings in the military.  And many of those have come to take place in our everyday lives as well.  Just to name a few, we have the microwave, GPS, digital cameras, and the duck tape![1]  Now, who hasn’t used the duck tape before?  Probably no one.  Of course, not all military inventions make you feel nice and fuzzy inside.  On August 9, 1945, the United States dropped a second atomic bomb on the city of Nagasaki, Japan.  The atomic bomb killed 45,000 people in Nagasaki.[2]

The United States certainly has not slowed down its pace in pouring money into defense science and technology.  Annual spending on defense science and technology has grown substantially over the past four decades from $2.3 billion in FY1978 to $13.4 billion in FY2018.[3]

When it comes to technology these days, we cannot talk about it without talking about intellectual property in tandem. Article I, Section 8 of the United States Constitution grants Congress the power to secure copyrights and patents.[4]  Section 8, Clause 8 states: “The Congress shall have Power … to promote the Progress of Science and useful Arts, by securing for limited Time to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”[5]  Back in the days, they meant “science” to refer to copyrights and “useful Arts” to  patents.

On June 19, 2018, the United States Patent and Trademark Office issued patent number 10 million.[6]  That is a lot of patents.  As a former patent examiner, I am proud to say that there are a few patents out there with my name on them. So, with so many patents out there, there must be millions of people making money with their inventions.  But unfortunately, that’s not always the case.  Of 21 million patents in 2014, 95 percent of the patents failed to be licensed or commercialized.[7]  That is tough news for the inventors.  All the hard work they put into patenting brilliant ideas sometimes just sit idle or go to waste.  Maybe the inventors should actively pursue selling or licensing the patented ideas.  That is exactly what Mr. Adams tried to in 1941.

In United States v. Adams, Mr. Adams filed for a patent for a battery in 1941; Mr. Adams’ patent, U.S. No. 2,322, 210, was issued by the USPTO in 1943.[8]  Back in the 40s there had only been 2 million patents, compared to 10 million today.  The patent related to a nonrechargeable electrical battery; the battery was an improvement over the conventional batteries at the time because it didn’t use acids and did not generate dangerous fumes.[9]  In addition, it was relatively light and the capacity for generating current was exceptionally large in comparison to its size and weight.[10]  Mr. Adams decided to show the battery to the Army and Navy.  At first, the Army did not think the battery worked, but then in late 1943, at the height of World War II, the Army concluded that the battery was feasible.[11]  The Army entered into contracts with various battery companies and found the battery to be adaptable to many uses.  They decided that it did and entered into contracts to have it made.[12]  Surprisingly (?), the Army never notified Mr. Adams about it, but Mr. Adams found the Government’s use of his battery and requested for compensation.[13]  When Mr. Adams’ request was denied and got nothing from the Government, he sued the them in 1960.[14]  Mr. Adams sued the Government under 28 U.S.C. § 1498(a): “Whenever an invention … is used or manufactured by or for the United States without license … the owner’s remedy shall be by action against the United States in the United State Court of Federal Claims for the recovery of his reasonable and entire compensation for such use and manufacture.”[15]

The Army probably knew that they weren’t supposed to use Mr. Adams’ invention without his permission.  It was pretty sneaky to start using Mr. Adams’ battery without telling him about it.  They just started to manufacture it as soon as they found out that it actually worked.  Interesting thing is that the Government tried to argue that there was nothing new about Mr. Adams’ battery because there was really no big change compared to old batteries.[16] Fortunately for Mr. Adams, the Court held that Adams’ battery “wholly unexpectedly” has shown advantages over other batteries while copying features others had discarded, and the Court also concluded that Mr. Adams’ battery was not obvious.[17]  The Court reasoned that the operating characteristics of the Adams battery have been shown to have been unexpected and to have far surpassed then-existing wet batteries.[18]  So, the Court found for Mr. Adams patent was valid and his claim against the Government was affirmed.[19]  I am not exactly sure how much Mr. Adams got paid, but I hope he got his fair share.

There is no doubt that the bond between the military and technology can never be separated. From drone pilots to cyber warfare, the pace that society is evolving with technology does not seem to slow down any time soon, and the militaries all around the world are evolving at a fast pace as well.  And securing technological information from other governments is becoming more important than ever.   As of 2017, according to the USPTO, there were 5,784 patents that you can’t see.[20] Those inventions are under “secrecy orders,” and we don’t know what they’re for.[21] “Patents covered by such “secrecy orders” may be restricted from export, made available only to defense agencies, or even classified.”[22]

In the case of the secrecy orders, the Government isn’t really trying to pull a fast one on the inventors like they did with Mr. Adams, but they’re telling them outright that they can’t use their patented inventions for the good of society. I do understand the Government’s position and the sensitivity of certain information in the patented inventions to a certain degree. However, when it comes to taking away a person’s constitutionally granted right, extreme caution must be exercised in order to maintain the right balance between the principles of natural rights and utilitarian ideals. Hopefully there aren’t too many inventors like Mr. Adams today.

[1] Adrian Willings, 27 Military technologies that changed civilian life, (Last visited August 19, 2018).

[2] Karl T. Compton, If the Atomic Bomb Had Not Been Used, (Last visited August 19, 2018).

[3] Derek B. Johnson, Pentagon spending more on emerging tech, (Last visited August 19, 2018).

[4] U.S. Const. art I, §8, cl. 8.

[5] Id.

[6] Andrei Iancu, 10 Million Patents: A Celebration of American Innovation, (Last visited, August 19, 2018).

[7] Daniel Fisher, The Real Patent Crisis Is Stifling Innovation, (Last visited, August 19, 2018).

[8] United States v. Adams 383 U.S. 39, 42 (1966)

[9] Id. at 43.

[10] Id.

[11] Id. at 44.

[12] Id.

[13] Id.

[14] Id.

[15] 28 U.S.C. § 1948(a) (1964).

[16] Adams, 383 U.S. at 48.

[17] Id. at 51.

[18] Id.

[19] Id. at 52.

[20] Arvind Dilawar, The U.S. Government’s Secret Inventions, (Last visited, August 18, 2018).

[21] Id.

[22] Id.