The Secret Sharer

Executive patent privilege.


The landmark 1953 ruling U.S. v. Reynolds gave the White House unreviewable authority to keep national security information secret even from the Supreme Court. We already knew the decision was based on stack of brazen government lies. What we didn't know was that it might be used to screw an inventor out of his royalties.

The Reynolds case followed the fatal 1948 crash of an Air Force B-29 that was involved in a classified drone mission. The crash was due to engine failures in a craft that had a miserable safety and maintenance record, according to an Air Force investigation that the government fought to keep secret. The Supreme Court sided with the government, ruling that, in a time of "vigorous preparation for national defense," the judicial branch "should not jeopardize the security which the [secrets] privilege is meant to protect by insisting upon an examination of the evidence."

Decades later, declassified documents revealed that the flight had no national security import at all and that Air Force officials had perjured themselves when they told the Court otherwise. In the meantime, the ruling provided the framework for executive privilege, which the Bush administration has been trying to expand.

Early in September Reynolds came up again, this time in an appeal of a patent case. Fifteen years ago, a team of New England inventors created the Crater Coupler, used to link pipes or cables. They negotiated with Lucent Technologies, which wanted to use it for classified government work, but the two sides could never agree. The inventors alleged in a 1998 lawsuit that Lucent has used the idea anyway and made millions with it. The U.S. Navy intervened in March 1999, saying the normal discovery process would jeopardize its right under Reynolds to keep the invention's uses secret.

On September 7, 2005, U.S. District Judge Alvin Schall agreed, saying "we are satisfied that the government claims a legitimate state secret." The decision quashes the inventors' challenge. Whether Lucent made millions off a stolen technology, we'll probably never know.?