Complications With Patenting Weapons

The human use of weaponry dates back to 400,000 BC. Our ancient ancestors used simple and effective weapons to hunt, gather, and protect themselves. Over time, as society progressed, so did our weaponry. Arrowheads and spears became rockets and firearms. In the 1800s, as society modernized and weapon-related technology evolved further, patents began playing a role in the world of warfare. 

The earliest weaponry patents were generally given to inventors who created specific types of firearms or technology to facilitate the use of firearms. These early weapon patents include John Browning’s Gas Operated Rifle and John Pederson’s Gun-Operating Cartridge.

As one might imagine given the intricacies, complexities, and dangers of weaponry, it is often very complicated to patent a weapon- but it is not impossible. 

What is a patent?

A patent is a powerful form of intellectual property protection. It grants a federal right of exclusive use to the inventor of a patent claim for up to twenty years. To patent an idea, the invention must be useful, novel, and non-obvious. The right conferred by a patent grant is “the right to exclude others from making, using, offering for sale, or selling” the invention in the United States or “importing” the invention into the United States. 

Once valid, a patent means that anyone who copies your product is in violation of patent infringement, and you can bring a legal claim against them for doing so. Let’s move on to; how to file a patent.

Patent application process

In order to qualify for a patent, an invention must qualify on the basis of an application after a process of examination by the U.S. Patent and Trademark Office. The application process is where it gets tricky for an inventor seeks to patent a weapon. 

J.D. Houvener, a patent attorney serving Los Angeles, explains that “When an inventor submits a patent application, it is screened by the USPTO, the Department of Defense, and other government institutions. If the application is for weaponry, what may happen is that the inventor can be frozen out with a secrecy order, meaning the inventor is forbidden to talk his or her invention.”

Secrecy Orders

The Invention Secrecy Act of 1951 allows the government to impose secrecy orders on patent applications that contain sensitive information that could be a concern to national security. These secrecy orders restrict disclosure of the problematic invention by withholding the grant of a patent. This requirement of secrecy can be imposed even when the application contains an invention or an idea by a private individual or company who has no government sponsorship or ties.

A secrecy order may be given to a weaponry invention for a few reasons. First, the weapon might be a threat to national security and it is in the public interest for the weapon not to be disclosed. Second, the government may already be working on the same or a similar item and they would like exclusivity on the item. Third, the government may see your invention and want a head start on it in the interest of national security.  

Illegal Weapon Patents?

In terms of illegality, the only category of weapon expressly prohibited from patentability is that of the atomic variety. U.S. Code 42 § 2181 stipulates that “No patent shall hereafter be granted for any invention or discovery which is useful solely in the utilization of special nuclear material or atomic energy in an atomic weapon.”

General Patent Eligibility Standards

If there is no secrecy order issued, and if the weapon is not of the nuclear variety, then an inventor can move forward towards patenting like any other invention. To qualify for a patent, an invention must meet the five criteria for patent eligibility. 

The requirements for patent eligibility are: (1) The intention be a new and useful process, the machine, or object; (2) the invention must have utility; (3) the invention must be novel or new; (4) the invention must be non-obvious; and (5) the invention must not have been disclosed to the public before the patent application.

A weapon may fall under scrutiny for the categories or of novelness and non-obviousness, like many other inventions with a long list of predecessors and models.

Working around these complications

One way that inventors in the field of weaponry can get around these complications is to create something that is ancillary or secondary to the weapon, such as a safety or a concealable holster. These are much less likely to receive a secrecy order and are also much more likely to pass eligibility tests. 

If you are an inventor in this space, it might be worthwhile to put your efforts towards a secondary weapon solution, as this market is growing. The rise of gun violence has given people more desire to come up with protection solutions, and if you have a great idea, you will want to patent it before another inventor comes along.