Intellectual property laws are government policies to encourage the creation and dissemination of information. But there are also laws allowing the U.S. government to suppress IP-protected technical knowledge, and Doni Bloomfield’s insightful article argues that IP scholars should pay more attention to these forms of “intellectual antiproperty.” Just as intellectual property laws allow innovators to capture some positive externalities of their efforts, Bloomfield argues that intellectual antiproperty laws address some of the negative externalities—at least as they relate to national security. And with increasing global competition between the U.S. and Chinese governments, these laws are likely to grow in importance.
Bloomfield focuses on two legal channels of information suppression, which cover information protected under trade secret law and patent law. First, U.S. export-control laws allow the State and Commerce Departments to restrict transfers of thousands of categories of proprietary U.S. technologies. For example, these agencies can bar a U.S. firm from sharing covered information with non-U.S. employees within the United States. The U.S. government has even claimed authority over extraterritorial sales involving U.S. know-how, such as fining an Irish firm for selling disk drives to China. Second, the Invention Secrecy Act allows the U.S. Patent and Trademark Office to impose secrecy orders on patent applications that pose a national-security risk, including to restrict use to classified contexts or to bar disclosure altogether. Continue reading “Government Suppression of IP”
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