Éibhear October 9, 2015 7:35 AM

NSA patents are special: they never expire and they usually aren’t revealed to the public.

Does this not go against everything that patents are supposed to be about!?

Evan October 9, 2015 8:09 AM

Yet another way the NSA actively harms American interests. These patents can only prevent American companies from replicating the patented invention, while competitors in foreign countries – “friendly” places like the EU but also more adversarial ones like China and Russia – are bound by no such limitations. In effect, the secret patent system requires private capital to spend money replicating R&D already done by the NSA, and then denies them the chance to actually recover that money.

If you wanted to design a system to methodically dismantle America’s competitive advantage relating to cryptographic technology, you would end up something a lot like this.

Joe Random October 9, 2015 8:58 AM

Maybe they never “expire” in order to provide a record of prior art, while giving free license to use the technology? What’s the deal?

ianf October 9, 2015 9:18 AM

@ Éibhear

Don’t be silly. Patents are evil, NSA is evil, they go hand in glove. And OF COURSE they could not have been revealed to the public for fear of giving a leg-up to the opposition.

@ EvanYet another way the NSA actively harms American interests.

What are you, a US hegemon-ist? Of course they harm someone’s interests, but you can’t make an omelette without breaking some eggs. Also, had these software companies cooperated nicely with The Man, I’m sure they’d be given a friendly hint or two not to go there. This is called the doctrine of lateral pragmatism, a.k.a. logrolling for security.

@ JacobWell, the Enigma machine could not have been legally invented had the NSA been granted a patent…

Makes you almost root for the Germans, doesn’t it?

@ Joe Random

They never expire, they’re like the Roach Hotel, once granted, never again see the light of the day. Possibly declassified when there’s a widely-known exploit against just the methodology they deploy, but unlikely – in order not to give the opposition any insights into when & what NSA might or might not have known.

65535 October 9, 2015 9:59 AM

@ Éibhear

“NSA patents are special: they never expire…”

“SA patents are special: they never expire and they usually aren’t revealed to the public.”

What? Interesting. What about a 20 year patent?


In the United States, under current patent law, the term of patent, provided that maintenance fees are paid on time, are:

• For applications filed on or after June 8, 1995, the patent term is 20 years from the filing date of the earliest U.S. application to which priority is claimed (excluding provisional applications).

• For applications filed before June 8, 1995 and for patents that were still in force on June 8, 1995, the patent term is either 17 years from the issue date or 20 years from the filing date of the earliest U.S. or international (PCT) application to which priority is claimed (excluding provisional applications), the longer term applying.

Never expire?

Sasparilla October 9, 2015 10:03 AM

As a governmental intelligence gathering organization, the NSA should not have the ability to be granted patents. They should definitely not be allowed to be granted permanent patents – how absurd and destructive to U.S. tech industry. Another Snowden, “I’m blown away that this exists” moment.

@ Joe Random – “Maybe they never “expire” in order to provide a record of prior art, while giving free license to use the technology? What’s the deal?”

If the NSA were a noble organization that made & licensed those patent’s free to anyone, your comments would be warranted, but they do not. Besides this, the NSA has close relations with organizations / businesses that own and protect other security related patents and prevents software companies that try to use them (if its not in the very short sighted interest of the NSA).

An example is the company VirnetX (whose top execs came from NSA / CIA) which owned a patent on encrypted communication where only the end users pass the keys to each other (no middle server / company to hold them and give them to the government).

They sued (and won) Apple for its messaging products forcing Apple to move to a server based control model of encryption keys for users from a user only model (iMessage / Facetime). They demanded money and (key thing) that Apple never use its patent again. Apple now has messaging products where the government can ask for and obtain access to encrypted communications.

This company also successfully sued Cisco, Microsoft and others back at the time…and is only one of many with such connections to the NSA / CIA.

Software patents should be declared invalid.

Fascist Nation October 9, 2015 10:38 AM

Of course you can take the government’s word for it that they thought of it first. They would never forge documents or lie about things to their own citizens.

albert October 9, 2015 11:08 AM

The whole software patents thing is well documented and discussed in Pamela Jones gone but not forgotten blog,
It’s clear that the US patent system is broken*; no surprise there. Few gov’t agencies can be considered functional. Last I checked, the USPTO brought in 700M USD per year to gov’t coffers. It’s like having a printing press in your basement…wait..
Notice that the patents listed refer to ‘devices’ and ‘methods’. This is necessary to avoid the patenting of mathematics. When an equation (or prior art) needs to be patented, you put it in a device, then patent the device. Methods are considered to be like recipes, in spite of being based solely on math.
This insanity started when patents were being issued in the 70s(?) for codecs and encryption algorithms. (I won’t entertain any arguments here; If you want to patent math, then you need to change the law, and make the absurdity official.)
I suspect that those secret trade agreements will try to make US patents applicable to the Whole World. If the NSA (by luck, most likely) ever patents an unbreakable encryption algorithm, you can be sure that the bad guys will jump right on it, and patents be damned.
Who’s the loser in this? It’s not Apple, etc. it’s us.
* nearly everyone agrees with this, regardless of their area of interest.
. .. . .. _ _ _

TascoBlossom October 9, 2015 11:09 AM

Inside the gov’t it’s driven by lust for power and control.

In the private sector hatred for patents is driven by envy.

TascoBlossom October 9, 2015 11:16 AM

A gov’t person will likely be heard to say somethink like “it’s in everyone’s best interest that we have the power and control.”

A person from the private sector will commonly be heard to say something like “anyone could have thought of that.” Then they’ll frequently cite some one in a million instances of patents wrongly allowed.

TascoBlossom October 9, 2015 11:34 AM

The gov’t doesn’t always want the patent(s) for itself. Have you considered the possibility the PTO squashes applications they would rather see go to a company that the gov’t has a commercial interest in?

When you’re through ridiculing the patent system because you like to believe many patents issued are ultimately bogus, consider the possibility that far more – and this is a fact – that far more are wrongly rejected. Either the inventor went broke because the lawyers were stupid and/or lazy, or because the examiner didn’t even understand the material. And THAT is the most profoundly sad fact of all. As much as some would like to think that powerful and innovative cryptographic designs are yet to come, there are too many dark and powerful forces. You keep waiting for some ivory tower university professor to do this, while summarily rejecting everything else as snake oil. The gov’t is the least of it.

At the same time people were sitting on their couch watching Gilligan’ Island, there were men getting their heads blown off in a jungle far away.

albert October 9, 2015 11:38 AM

“…Then they’ll frequently cite some one in a million instances of patents wrongly allowed….”

Good one! Look for a career in stand up.

. .. . .. _ _ _

Brian Kaufman October 9, 2015 11:51 AM

Information on USPTO Secrecy Orders:

A patent will not issue while the application is subject to a secrecy order. US law (35 USC 154 and 37 CFR 1.701) allows for an extension of a patent term for the length of the secrecy order.

The patent will expire after its normal term, extended by the length of the secrecy order. So, instead of expiring 20 years from the filing date, the patent would expire 20 years from the filing date plus the length of the secrecy order. The enforceable period of the patent is the same length, but shifted in time by the length of the secrecy order.

As long as the secrecy order is in place, the application will not issue as an enforceable patent, and therefore anyone can practice the invention without being liable for patent infringement. However, I imagine the government would stop you other ways.

Ray Dillinger October 9, 2015 12:09 PM

It is not true that NSA patents never expire.

What is true is that NSA patents don’t issue until the NSA allows them to issue.

William Friedman (NSA cipher bureau chief) filed for a patent in 1943 on a particular design for a rotor cipher machine. That patent was finally issued around (IIRC) 2010, when material relating to rotor machines was no longer considered relevant to future security needs and the patent’s subject material was declassified.

In the intervening time, anybody could legally have produced rotor cipher machines to that design, sold them, etc. No patent was in force. And if the NSA had wanted to stop them from doing so they’d have had to get the patent actually issued and then they could have enforced it. If someone else had made a patent application during that time on the same device, then the patent would also have issued – but it would issue to the NSA, on the basis of being the original inventor and first patent applicant.

Once the patent finally issues however, it is subject to a normal patent term of 20 years, after which it becomes public domain and anybody can use it. No patent can actually prevent use of the patented material for more than one patent term. The NSA is special in that they get to decide when the patent term for their stuff begins. But they are not so special that they get longer patent terms or more than one patent term.

rgaff October 9, 2015 2:26 PM

Since when does the NSA do things legally? I mean, sure, they do things “legally” where they make up new meanings for words in the dictionary in order to interpret laws any way they jolly well please… but, this is just proving my point, as that’s not what “legally” means in the friggin dictionary!

Brian Kaufman October 9, 2015 2:28 PM

“If someone else had made a patent application during that time on the same device, then the patent would also have issued – but it would issue to the NSA, on the basis of being the original inventor and first patent applicant.”

That is not an accurate statement. The second application would not issue to the NSA. A patent will only issue to the applicant of the specific application. What would happen is that the second patent application would also be subject to a secrecy order, then behind closed doors the examination would occur. The second patent application would be rejected on the basis of the original NSA patent application, and ultimately be abandoned unless the applicant could differentiate over the NSA disclosure. If the second applicant could successfully differentiate his invention, then once the secrecy order was lifted both patents would issue.

name.withheld.for.obvious.reasons October 9, 2015 5:27 PM

@ rgaff

I mean, sure, they do things “legally” where they make up new meanings for words in the dictionary in order to interpret laws any way they jolly well please…

Your comment reads amazingly like those made by Thomas Paine, the printed matter in Common Sense, where he states the following:

And is there any inhabitant in America so ignorant, as not to know, that according to what is called the PRESENT CONSTITUTION, that this continent can make no laws but what the king gives it leave to; and is there any man so unwise, as not to see, that (considering what has happened) he will suffer no law to be made here, but such as to suit HIS purpose.

patent_leather October 9, 2015 7:44 PM

I’m not surprised in the least.

Without getting into broader American intellectual property policy problems, the American government has issued secret patents since at least nuclear weapons development.

Wesley Parish October 10, 2015 2:15 AM

re: software patents, IPR inflation and economic bloat

It’s actually quite amusing. Most empires don’t fall because of foreign adversaries; most fall because they’re pithed themselves and have nothing left to hold themselves up. Neither the East Roman empire nor the Parthian empire defeated each other: they wore themselves out so that the Muslim umma under Mohammed’s heirs was able to swamp them without really trying.

The US will use its current economic power to force through its IPR extensions to embrace and extinguish everybody else’s. This’ll only succeed with its friends and allies. Everybody else’ll get a free ride. And due to the smothering effect of IPR inflation, the non-friends will find it easier to compete.

You see, the real reason why the US has since the seventies, fallen behind the Asian Tigers, has not been the lower wages of the Asian Tigers. It’s been because of the economic bloat generated by an overactive IPR inflation.

Re rotor cipher machines

since the rotor cipher machine is a mechanical polyalphabet cipher a la Vignere, and since it is trivial to design one once the theory is understood – I myself considered one in my adolescence based on the Mayan calendar wheels – I’d be surprised if any patent could be issued on any such device, unless there were specific technical advances, like perhaps using nanowheels at the level where quantum indeterminancy becomes a ruling factor …

Degreed morons in the PTO – just what everybody needs, next to brain-eating zombies in the House of Representatives …

stine October 10, 2015 7:21 AM


How does this compare the the situation described in Richard Feynman’s book “Surely you’re joking, Mr. Feynman” about being paid $1 for a patent on a nuclear powered airplane (or something simimlar) while working at Los Alamos. The scientists and engineers were encouraged to write up patent applications for any possible use of nuclear technology. It didn’t occur to me at the time that the patents wouldn’t be published…

I wonder if I should re-read every book that I read when I was a kid just to see if my world-view changes.

Dead Inventor October 10, 2015 5:33 PM


If the second applicant could successfully differentiate his invention, then once the secrecy order was lifted both patents would issue.

And if that differentiation would have happened, but never did because the secrecy order was lifted a hundred years after the second applicant had died of old age? This isn’t democracy.

Bitfreak October 12, 2015 12:46 PM

The Friedman patent US6097812 is interesting.

It shows that in 1933 rotor machines already weren’t considered unbreakable, despite the later legend surrounding Enigma. Of course the Germans introduced reflector rotors and irregular stepping, but the hunter was still able to track the prey.

Friedman had savaged the illusory Hebern single-rotor machine, and the background discussion in the patent reflects his contempt.

But was his invention really better? Or merely a “complication illusoire”?

It seems like a hybrid between a rotor machine and the Vernam system, wherein the tape controls the stepping of the rotors instead of being combined directly with the plain text stream.

Each rotor thus has a 50% of advancing at each character, but on average all rotors will rotate at the same speed, and will be statistically track each other within a few steps, with a very low probability of wandering off by more than a few notches.

You might thus figure out the rotor configuration without needing to actually having to know the contents of the keying tapes. Perhaps with the Viterbi algorithm?

NSA Patent? October 12, 2015 6:19 PM

Did they ever create anything from wholly within the organisation that didn’t partially or fully rely on outright theft of the ideas of some other person, group, collective, corporate, nation state etc?

Like that ex-NSA Superman director that has miraculously ensconced himself in the private sector with a number of patents for items he magically conjured up in his spare time?

Even though he is thick as two planks?

Foul criminals in uniform – nothing more, nothing less. The damage they are doing to the US and its fascist partners Micro$shaft, Poodle and so on is delicious.

Keep it up boys, you are accelerating the US downfall whose image globally is about as palatable as finely sliced turd on a fresh sesame seed bun.

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