Institute of secret inventions in the USA: experience for Ukraine

The article analyses the legal regulation of secret inventions in the United States of America (hereinafter - the USA). This country has considerable experience in this area, this legal institution has been developing since the First World War (since 1917), and the status and trends in the adoption of Secrecy Orders of inventions are shown. The main provisions of The Invention Secrecy Act of 1951 and the Manual of Patent Examining Procedure are studied. The shortcomings of the system of classification and declassification of inventions in the United States are identified. The author analyses the positions of American researchers on the subject matter of the study. The regulation of secret inventions in the USA is carefully thought out and reflects the development of this legal institution. The author analyses the case law and establishes that the latter can be an effective mechanism for inventors to receive monetary compensation for the classification of an invention by the U.S. Government. At the same time, the number of positive court decisions is insignificant, and examples are given where the court denied the inventor compensation. It is found that USA law defines three types of orders to maintain the secrecy of inventions, with special attention being paid to the first type of order to maintain secrecy, which is essentially a form of export control. The author analyses the provisions of USA legislation on annual review of the decision to classify inventions. The author compares these legal institutions in Ukraine and in the USA, taking into account the Laws of Ukraine ‘On Protection of Rights to Inventions and Utility Models’ and ‘On State Secrets’, and formulates proposals for improving national legislation. The proposed amendments are of great practical importance, especially in times of war, as they can prevent patent migration and promote inventive activity in Ukraine. Particularly noteworthy are the provisions of the Invention Secrecy Act of 1951 regarding the loss of the right to an invention due to unauthorised disclosure, as well as the discretion of different agencies to regulate secret inventions.