Patents Under Lock and Key: Managing Dual Use Technology in a Globalized World | Foley Hoag LLP

Dual use technologies are innovations that have both civilian and military applications. Notable examples include advanced semiconductors, artificial intelligence (AI), encryption software, 3D printing, chemical and biological materials, and certain manufacturing processes. For instance, solid-state devices and computer chipsets are essential for both consumer electronics and military systems; AI can be used for medical diagnostics as well as surveillance or autonomous weapons; and encryption software secures personal communications but can also protect military secrets. These technologies drive economic growth and societal advancement, but their potential for military use creates unique challenges in the context of patent filings.

Patent-Related Challenges for Dual Use Technologies

1. Disclosure vs. National Security:
Patent law is based on the principle of public disclosure in exchange for exclusive rights. However, disclosing technical details of dual use inventions can pose national security risks if sensitive information becomes publicly accessible. To mitigate this, patent offices—such as the U.S. Patent and Trademark Office (USPTO)—can impose secrecy orders on applications that contain information deemed critical to national defense. These orders prevent publication, restrict foreign filings, and require the applicant to keep the invention confidential, with severe penalties for violations. This creates a tension between the patent system’s goal of disseminating knowledge and the need to protect sensitive technologies.

2. Export Control Compliance:
Patent applications for dual use technologies may contain technical data subject to export control laws. In the U.S., sharing such information with foreign patent offices, attorneys, or collaborators may require an export license. Failure to comply can result in significant legal and financial penalties. This adds complexity to the patenting process, as applicants must assess whether their inventions are controlled and ensure compliance before pursuing international protection.

3. International Coordination and Treaties:
International agreements, such as the Wassenaar Arrangement, the Nuclear Non-Proliferation Treaty, and the Chemical and Biological Weapons Conventions, require member states to regulate the dissemination of certain dual use technologies. As a result, patent offices may coordinate with defense and export control agencies to review applications in sensitive fields, leading to increased scrutiny and potential delays.

4. Impact on Commercialization and Innovation:
Secrecy orders and export controls can delay or prevent the grant and publication of patents, hindering commercialization, licensing, and international patent protection. For example, there have been cases where cryptography-related patents were placed under secrecy orders for many years, preventing their issuance and public disclosure. One well-known instance involved a cryptographic invention that remained under a secrecy order for over a decade, only being released after the technology was no longer considered a security risk. Such delays may reduce the commercial value of the invention and limit opportunities for collaboration and investment, particularly in global markets.

5. Strategic and Procedural Complexity:
Applicants must proactively identify potential security or export control issues before filing, often requiring specialized legal and compliance expertise. The risk of secrecy orders or export restrictions may influence decisions about where and how to seek patent protection, and may deter some inventors from pursuing patents altogether.

Conclusion
Patent filings for dual use technologies are subject to unique and significant challenges. The need to balance public disclosure with national security, comply with export controls, and navigate international regulations introduces additional layers of complexity and risk. Careful strategic planning is essential. For example, inventors may conduct early internal reviews to identify sensitive subject matter, consult with export control and patent counsel before filing, and consider filing only in jurisdictions with robust security review processes. Companies may also structure their R&D and patenting activities to separate sensitive and non-sensitive technologies, use contractual agreements to manage information flow, and develop contingency plans in case a secrecy order is imposed. These proactive measures help mitigate risks, ensure compliance, and maximize the commercial and strategic value of dual use innovations.

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