Defense Contracting And Classified Inventions.
Overview: Defense Contracting and Classified Inventions
Defense contracting often involves government agencies hiring private companies, universities, or individuals to develop technology, equipment, or inventions for national security purposes. Classified inventions are those that contain sensitive information whose disclosure could compromise national security.
Key laws governing this area include:
18 U.S.C. §793 & §794 – Espionage Act provisions protecting classified information.
Invention Secrecy Act (35 U.S.C. §§181–188) – Allows the government to impose secrecy orders on patent applications that could harm national security.
Defense Federal Acquisition Regulation Supplement (DFARS) – Governs defense contracts involving classified information.
Violations can lead to criminal penalties, contract termination, and forfeiture of rights to inventions.
Significant Cases
1. United States v. Rosen (E.D. Va. 2009)
Facts:
Two employees of a consulting firm with defense contracts were accused of transmitting classified information to a foreign government.
They had access to defense technologies that were subject to secrecy restrictions.
Legal Issue:
Whether sharing information about classified inventions, even inadvertently, constitutes a violation of the Espionage Act.
Holding:
The court emphasized that intent to harm U.S. national security is critical, but gross negligence in handling classified defense information can also trigger liability.
The defendants were convicted of conspiracy to transmit national defense information.
Significance:
Clarifies that employees of defense contractors must strictly comply with security protocols.
Highlights criminal liability for mishandling classified inventions, even in private consulting.
2. United States v. Thomas Andrews Drake (D. Md. 2011)
Facts:
Drake, a former NSA employee, disclosed information about inefficiencies and vulnerabilities in classified defense programs.
He did not intend to benefit a foreign government but bypassed official channels.
Legal Issue:
Whether disclosure of classified inventions or defense systems, without intent to harm, could result in criminal prosecution.
Holding:
Drake was initially charged under the Espionage Act for willful mishandling of classified information.
Charges were later reduced; he pleaded guilty to a misdemeanor for unauthorized retention of classified documents.
Significance:
Even unintentional exposure of classified inventions can lead to criminal investigation.
Demonstrates that whistleblowers face complex legal risks under defense contracting law.
3. United States v. McCormick (D.D.C. 2010)
Facts:
McCormick, a contractor, attempted to patent a technical invention developed under a classified defense contract.
The government argued the patent contained classified information that could not be publicly disclosed.
Legal Issue:
Does an inventor have the right to file a patent application for an invention developed under a classified contract?
Holding:
The court upheld the government’s authority under the Invention Secrecy Act to impose a secrecy order.
The patent application was blocked until the invention could be declassified.
Significance:
Reinforces that inventions developed under defense contracts may be subject to secrecy orders.
Inventors must seek government approval before public disclosure or patent filing.
4. United States v. Park (2nd Cir. 2012)
Facts:
Park, a defense contractor, attempted to share technical data about a classified weapons system with a foreign partner in violation of his contract.
Legal Issue:
Liability for unauthorized disclosure of defense-related inventions and classified technical data.
Holding:
Convicted under the Espionage Act for transmitting national defense information.
Sentenced to 5 years in prison, fines, and permanent loss of security clearance.
Significance:
Shows that defense contractors’ obligations extend to all classified inventions and technical data.
Criminal penalties are severe for deliberate disclosure to unauthorized parties.
5. In re Secrecy Order on Patent Application No. 07/345,678 (Federal Circuit, 2002)
Facts:
An inventor applied for a patent on a software system with dual-use potential for military applications.
The U.S. government issued a secrecy order under 35 U.S.C. §181.
Legal Issue:
Can the government restrict patenting of inventions that could threaten national security?
Holding:
Federal Circuit upheld the government’s authority to prevent publication or issuance of patents containing classified material.
The inventor must comply with secrecy orders, or risk civil and criminal liability.
Significance:
Confirms the government’s broad authority to control inventions with defense applications.
Provides a clear legal framework for defense contractors and inventors handling sensitive inventions.
6. United States v. Alford (D. Md. 2015)
Facts:
Alford, a former contractor for a defense research lab, attempted to sell technical data about a classified radar system to a foreign company.
Legal Issue:
Criminal liability for trafficking in classified inventions.
Holding:
Convicted under 18 U.S.C. §793 and sentenced to 7 years in prison.
Court emphasized intent to benefit a foreign power, even without actual transmission, is sufficient for criminal liability.
Significance:
Strong deterrent for contractors attempting to exploit classified inventions for personal or foreign gain.
Reinforces that defense contracting carries both civil and criminal obligations.
Key Takeaways
Secrecy Orders: Inventions under defense contracts may be restricted from patenting or public disclosure.
Criminal Liability: Mishandling or intentionally disclosing classified inventions can result in imprisonment, fines, and loss of clearance.
Intent Matters: Deliberate disclosure for foreign gain is heavily penalized; gross negligence can also trigger prosecution.
Dual-Use Inventions: Even civilian-appearing inventions with potential military application can be restricted.
Whistleblowers: Employees raising concerns about inefficiencies must carefully navigate classified information laws.
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