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Let’s say a regular person comes up with a new design for a missile with speakers so that said missile plays something like Flight of the Valkyries before impact to warn civilians or for psyops or what have you. Missile plus speaker equals novel. All hypothetical to motivate this question.

  1. is this considered legal or useful?

  2. would weapon systems such as the above even be patentable?

  3. would the “national security” clause kick in?

NOLO books don’t talk much beyond “no” to counterfeiting devices and tax fraud systems.

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    Welcome to Ask Patents. Excellent first question.
    – Eric S
    Commented Sep 26, 2022 at 23:33

3 Answers 3

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Weapons are very useful and many are patented. One example is Safer and simpler cluster bomb US4744301A

In some parts of the world there is an issue of “ordre public” that can interfere with legal protection for patents on things like gambling machines, devices for deception and, using similar logic, trademarks that are deemed profane.

At one time there was a doctrine in the US that something that facilitated an illegal act wasn’t “morally useful”. So a gambling or suicide machine, etc. were not allowed.

That changed - one turning point was a patent for something that visually simulated a machine that mixed a beverage (juicy whip) in an appetizing way while under the counter making the actual drink in a less customer-preferred way. The heart of the invention was deceiving consumers. It was ruled useful and eventually the prohibition on gambling machines fell also.

Regarding trademarks SCOTUS recently allowed the trademarks “The Slants” for a band of Asian musicians and FUCT for a men’s shirt company.

Back to weapons - nuclear weapons are forbidden from patenting but there is no prohibition in the US for other types of weapons. However, the defense department has representatives stationed in the USPTO who can impose a secrecy order on the prosecution if a patent. You can apply for and prosecute a patent under a secrecy blanket. Maybe someday they will let it free of that restriction and you could get the patent allowed. Now the term of a patent is measured from filing date so a long secrecy order will result in a short or non-existent patent life.

Note that having a patent does not provide any right to make and sell it but just the negative right to try to stop others from making and selling it.

I’m taking your example as an invention of a weapon of primarily war use without any judgement of the specific concept.

—— The law regarding secrecy orders

37 CFR 5.2 Secrecy order. (a) When notified by the chief officer of a defense agency that publication or disclosure of the invention by the granting of a patent would be detrimental to the national security, an order that the invention be kept secret will be issued by the Commissioner for Patents.

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  • Very helpful and pleasure to read. I did not know that about the DoD having reps in the USPTO. Interesting. The motivation for this question came from an episode of The Office where the DoD purchased fmr. CFO David Wallace's vacuum patent. Extrapolating, I'm curious if instead a good defense/war design would be rejected because "it is immoral to injure/stun/shock/bomb people" and "it would be illegal if I were to operate it". You've given me my answer with "there is no prohibition in the US for other types of weapons" and "weapons are useful". This was a thought experiment. Thank you!
    – Drakes
    Commented Sep 27, 2022 at 0:04
  • I added an example US patent for an unpleasant military device. Apparently invented by a company from Chile. And I added the first section of the regulation enabling security orders from the USPTO initiated by the DoD.
    – George White
    Commented Sep 27, 2022 at 7:25
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  1. It depends on the practice of the patent office examining the patent application, or on the examiner examining the case. One patent office might accept it, some other not. In Europe, as long as the claimed device it is technical, its novelty and inventive step shall be assessed unless there is some other provision that the claimed invention offends.

  2. They could be patentable, but it would not surprise me if a provision like the following of the European Patent Convention were to be put forward by the patent office not to allow the claims:

Art. 53(a) EPC: European patents shall not be granted in respect of:
(a) inventions the commercial exploitation of which would be contrary to "ordre public" or morality; such exploitation shall not be deemed to be so contrary merely because it is prohibited by law or regulation in some or all of the Contracting States;

At least in Europe most countries have an analogous provision in their national patent laws.

  1. Again, it depends. I have seen patents and patent applications that one would never expect to see published. In this case there does not seem to be much value in a missile with some audio player, and if the missile, which is the part relevant to national security, is already known, the patent application might go to the patent office for prosecution. My answer would differ if missiles were not known in the art.
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    This is a helpful insight into EPC. Thank you.
    – Drakes
    Commented Sep 26, 2022 at 23:48
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    "such exploitation shall not be deemed to be so contrary merely because it is prohibited by law or regulation in some or all of the Contracting States;" That makes total sense. Commented Sep 27, 2022 at 6:33
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Since this is patents.stackexchange, it is just prudent to not construe hypos overbroad merely to save them from an absurd construction, or to read it in such light to merit the grant of a hypothetical patent.

Accordingly,

  1. most missiles would fail in all jurisdictions as missiles typically are supersonic, and such embodiments would fail to meet the proposed utility that the Flight of the Valkyries "want civilians before impact" as the audio "warning would simply not reach them before the missile did. (Exceptions would include subsonic missiles which travel at. ca. 0.9 Machs);

  2. I am not aware of any legal bars merely on the basis of including utilities for war, and an argument could be made against the European rules "ordre public" that any subsonic embodiments are designed to prevent human casualties, the opposite of immoral while states have interests deemed legitimate in manufacturing weapons;

  3. probably not, the abstract idea behind any utility falling thereunder would not provide the type of military edge that, if obtained by adversaries, could affect the outcome of any military conflicts by the nature of such abstract idea.

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