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From: David Farber <[EMAIL PROTECTED]>
Date: Fri, 23 Sep 2005 06:09:34 -0400
To: Ip Ip
Subject: [IP] Secrecy Power Sinks Patent Case
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From: [EMAIL PROTECTED]
Date: September 22, 2005 9:27:32 PM EDT
To: [EMAIL PROTECTED]
Subject: Secrecy Power Sinks Patent Case
Secrecy Power Sinks Patent Case
By Kevin Poulsen
02:00 AM Sep. 20, 2005 PT
When New England inventor Philip French had his epiphany 15 years
ago, he didn't dream it would lead to an invention that would be
pressed into service in a top-secret government project, or spawn an
epic court battle over the limits of executive power. He was just
admiring a tennis ball.
The ball's seam, with its two symmetrical halves embracing each other
in a graceful curve, intrigued him. "I thought, my god, I bet you can
do something with that kind of shape," he recalls. He was right.
French and two colleagues went on to design and patent a device now
called the Crater Coupler, a simple, foolproof connector for linking
one pipe or cable to another without nut threads or bolted flanges.
The device is interesting on its own, but the broader legal legacy of
the invention may be more important. In a little-noticed opinion this
month, a federal appeals court ruled against the Crater Coupler
patent holders and upheld a sweeping interpretation of the
controversial "state secrets privilege" -- an executive power handed
down from the English throne under common law that lets the
government effectively kill civil lawsuits deemed a threat to
national security, even if the state is not a party to the suit.
The ruling is notable as a rare appellate interpretation of the state
secrets privilege as it applies to patent holders. As such, it is a
potentially worrying development for inventors -- particularly those
developing weapons, surveillance and anti-terror technologies for
government contractors -- who may find infringement claims dismissed
without a hearing under the auspices of national security. It also
offers a fascinating, if limited, view into the machinery of official
secrecy at a time when the privilege is being exercised as never before.
"It's the most powerful privilege the government has," says William
Weaver, senior adviser to the National Security Whistleblowers
Coalition. "It's the nuclear option. It never fails."
French says he and his partners -- Charles Monty and Steven Van
Keiren -- got the first inkling of a national security application
for the Crater Coupler a decade ago. While shopping the new design
around to "a whole mess of quick-disconnect companies," the trio
received an intriguing inquiry from Lucent Technologies, the
reincarnation of the legendary Bell Labs research center, and at that
time still part of AT&T.
Lucent wanted to evaluate the Crater Coupler for use as a fiber-optic
"wetmate" -- an airtight connector for two fiber-optic cables
designed to operate underwater. It was part of a contract with a U.S.
government agency that, the company said, would have to remain
unnamed. "It was a secret black job, they couldn't divulge what it
was for," says French. "Who it was for, the Navy or the CIA, or who
knows, they never said."
A Lucent spokesman confirmed that the company had contact with French
in 1995, but wouldn't discuss the details, citing government secrecy
concerns.
But according to French, the inventors agreed to help Lucent try to
adapt the Crater Coupler to the company's needs, with the expectation
that Lucent would license the group's patent if it all worked out.
The inventors sent over plans, sketches and a model, and French began
consulting and advising a Lucent engineer in monthly phone calls.
After about a year of development and testing, Lucent had good news
for the inventors: The device passed all the tests, shaming a
competing, clunky design that French says resembled an old thermos.
But when the inventors got on the phone with Lucent's lawyers to
discuss license terms, the company dropped a bomb. "Almost the first
thing they said was, 'Well, we don't have to do anything, because
this is under some sort of provision for military secret stuff where
we don't have to pay anything,'" says French.
French felt betrayed. "This was after a year of encouragement, with
me helping them and them informing us of their progress," says
French. "That was one hell of a shock."
Lucent eventually offered the inventors $100,000 for the right to
produce 1,000 wetmate couplers. The offer caused a rift between
French and his partners: They wanted to make a counteroffer of
$500,000, but French -- in his 60s and recently retired -- wanted to
take what was on the table. "I said, well, Lucent doesn't have to do
a thing, so why don't we take $100,000 and be happy with that?"
Unabl
