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.
Government suppression of information isn’t new. Bloomfield engagingly documents the historical roots of these legal regimes, including the increasing use of industrial IP to define the limits of the government’s authority and to balance free-speech interests with national-security concerns. These regimes stem from WWI and WWII, when Congress passed laws allowing the government to restrict trade and to impose patent secrecy orders—and to more broadly censor other types of information. During the Cold War, the government dropped these broader speech controls and focused intellectual antiproperty laws on industrial IP. Enforcement varied over the following decades. A general liberalization of export controls during the Clinton, Bush, and Obama presidencies gave way to a spike in enforcement during the first Trump presidency due to rising concerns about China. President Biden’s administration tightened restrictions even further, and the second Trump administration seems likely to continue this course.
Bloomfield is right that these intellectual antiproperty laws deserve attention from IP scholars and teachers. For one thing, they are important limits on trade secrets and patents that are increasingly relevant for IP practice. As Bloomfield summarizes, these regimes “in effect added a new, enduring clause to the traditional IP bargain, requiring those seeking industrial IP rights to give the government the power to restrict knowledge about that invention.” They may help push innovators to use trade secrets rather than patents for inventions that implicate national security interests to avoid the broader scope of a patent-secrecy order. And they may have unintended consequences for IP boundaries; for example, the trend toward increasing use of confidentiality agreements (including to circumvent bans on noncompetes) may expand the government’s authority to restrict the covered information.
Bloomfield’s article also invites IP scholars to think more broadly about how and when the government should suppress IP. If there is a century-old tradition of government interference with IP rights to address national-security concerns, can this help justify government limits on IP to address other kinds of negative externalities? Could these export-control laws serve as a template for other limits—or is national security different? What are the best institutional designs for balancing the costs and benefits related to different externalities, and how well do U.S. institutions achieve that balance? Is restricting intellectual antiproperty to industrial IP sufficient to prevent First Amendment harms, or does this undervalue the speech interests that can arise in patent and trade secret cases?
As with most articles I like (lots), Bloomfield’s Intellectual Antiproperty raises as many questions as it answers, laying the foundation for an ambitious research agenda. It is recommended reading both for scholars focused on problems internal to IP, and for the growing number of scholars considering how IP laws intersect with other laws and policies for regulating information.
