When New England inventor Philip French had his epiphany 15 years ago, he didn’t dream it would lead to an invention that would be pressed into service in a top-secret government project, or spawn an epic court battle over the limits of executive power. He was just admiring a tennis ball.
The ball’s seam, with its two symmetrical halves embracing each other in a graceful curve, intrigued him. “I thought, my god, I bet you can do something with that kind of shape,” he recalls. He was right. French and two colleagues went on to design and patent a device now called the Crater Coupler, a simple, foolproof connector for linking one pipe or cable to another without nut threads or bolted flanges.
The device is interesting on its own, but the broader legal legacy of the invention may be more important. In a little-noticed opinion this month, a federal appeals court ruled against the Crater Coupler patent holders and upheld a sweeping interpretation of the controversial “state secrets privilege” — an executive power handed down from the English throne under common law that lets the government effectively kill civil lawsuits deemed a threat to national security, even if the state is not a party to the suit.
The ruling is notable as a rare appellate interpretation of the state secrets privilege as it applies to patent holders. As such, it is a potentially worrying development for inventors — particularly those developing weapons, surveillance and anti-terror technologies for government contractors — who may find infringement claims dismissed without a hearing under the auspices of national security. It also offers a fascinating, if limited, view into the machinery of official secrecy at a time when the privilege is being exercised as never before.
“It’s the most powerful privilege the government has,” says William Weaver, senior adviser to the National Security Whistleblowers Coalition. “It’s the nuclear option. It never fails.”
By Kevin Poulsen