Today my Linked-In news feed flashed up “Jobs you may be interested in” and the first one on the list was this NSA job posting for a “Patent Attorney.” [[Edit: Aug. 05, 2013 – The job posting has expired and is no longer available for viewing. -SKH]]

I find this quite curious. Consider that the NSA (“National Security Agency”) is sometimes referred to as “the National Secrets Agency,” “Never Say Anything,” or simply “No Such Agency.” Regardless, one thing the NSA does well is keep secrets (ignoring for now recent revelations about the use of the NSA’s expanded FISA authority).

It is strange to think that the NSA is active in the patenting space given the requirements to file a patent application. More specifically, the patenting process is understood to be quid pro quo or “this for that.” It’s an exchange. The USPTO on behalf of the Federal Government agrees to potentially grant you exclusive I.P. rights if you meet a series of requirements and successfully manage to advance your patent application through to patent issuance, thus resulting in an issued patent with enforceable rights. Even if you fail to secure a patent, your disclosure and its teachings will become part of the public domain.

One key requirement is that inventors provide an adequate public disclosure, sufficient to teach others in the public domain how to utilize or implement the invention without undue experimentation. In other words, you must spill the beans, or give up the secret ingredients that make your invention special.

With regard to Intellectual Property law, pursuing patent rights is essentially the opposite of actively protecting your innovations through trade secret which actually requires that you introduce reasonable efforts to maintain the secrecy of your innovation. The NSA implements significant efforts to maintain the secrecy of its innovations, so this seems to be a better fit than patent law.

Now in fairness to the NSA, the job posting is actually a general I.P. role responsible for “providing a full range of Intellectual Property (IP) legal services,” but it does specifically include patent preparation and prosecution also.

Nevertheless, this provides a helpful illustration to businesses in terms of the various means by which their innovations may be protected. Although I write patents for a living, sometimes filing a patent is not the best strategy to protect your interests and I’m happy to tell you as much. There are a variety of considerations at play when making such a decision that should be discussed with someone experienced in both Patent and Trade Secrets law. Perhaps such a topic is fodder for another post.

All the very best.

Spencer K. Hunter