|
|||||
|
|||||
|
|
|
|
|
|
|
|||||
 |
 |
    |
|
|
|||
 |
|
||
|
|||
|
|
|
|
||||||||
|
United States: Army to Revise Patent Amid Treaty Violation Concerns By David Ruppe The patent application was filed September 10, 2001, and the patent was awarded Feb. 25, 2003. A copy appears on the U.S. Patent and Trademark Office Web site and was first publicized by the Sunshine Project, an arms control advocacy group. The application says the “rifle-launched non-lethal cargo dispenser” could be used to disperse aerosols, including “chemical agents” and “biological agents.” One of the patent’s specific claims is that it could disperse aerosols from a category of materials, including “smoke, crowd control agents, biological agents, chemical agents, obscurants, marking agents, dyes and inks, chaffs and flakes.” “There is also a need for delivering nonaerosol payloads or articles, including, but not limited to, flash grenades, concussion grenades, nets … biological/chemical agents, and the like for efficient, rapid dispersal and delivery,” the patent says. The 1972 Biological Weapons Convention and treaty-implementing U.S. Biological Weapons Antiterrorism Act of 1989 prohibit developing devices for delivering biological weapons agents. The more complicated 1993 Chemical Weapons Convention generally prohibits dispersal of toxic chemical agents in combat, while allowing certain chemicals to be used for law enforcement purposes and perhaps riot control agents in certain military situations, experts say. “It looks as if it is being specifically designed to deliver those payloads. Now that raises some pretty serious questions under the BWC or CWC,” said David Fidler, an Indiana University international law professor and arms control treaty expert. “To see biological agents repeatedly used here as a specifically contemplated payload, it’s amazing and worrying,” he said. “Either it’s a [treaty] violation or the patent is invalid,” Julian Perry Robinson of the University of Sussex, a chemist and patent lawyer by training, said. Robinson said a patent might be considered invalid if it makes a claim that could not be supported. U.S. Defense Department spokesman Lt. Cmdr. Don Sewell said today in an e-mail that the terms “chemical agents” and “biological agents” were included in the patent “in order to be comprehensive and claim possible payloads as broadly and generically as possible (which is the objective when obtaining patent protection).” “Our objective was to claim chemical and biological payloads in general, not to specify chemical or biological warfare agents/materials,” he said. Sewell said the Army is planning to change the text. “It is clear now, in hindsight, that inserting the term chemical or biological ‘agents’ was unfortunate and that ‘materials’ may have been a better choice of words,” he said. Suggested Interpretations In a worst-case interpretation, experts said, the patent indicated that the United States is developing a weapon in violation of an international treaty and U.S. law. In the best possible light, they said, the language was mistakenly included in the patent, but is nevertheless harmful because it could undermine the credibility of the U.S. commitment to upholding its international arms control commitments. Even if the language was mistaken, “this is not prudent drafting … What’s going to happen is people are going to say, here’s further proof that the United States is flouting its obligations under the BWC,” said Fidler. “It suggests a kind of cavalier attitude by the United States government towards its international treaty constraints and that in turn will suggest, at least to many people, that the United States is acting to develop a biological and chemical weapons capability,” said Mark Wheelis, a University of California-Davis chemical and biological warfare authority. “Whether that’s true or not is another matter, but it certainly is giving that impression,” Wheelis said. The Defense Department said in a statement yesterday it was “currently reviewing the patent.” “It has not been finally determined if and how the rifle-launched delivery device might be used, but it will not be used in any way that is inconsistent with U.S. law or U.S. treaty obligations,” the statement said. Suggestions of Intent In another recent e-mail comment, Mickey Morales, a public affairs officer at the U.S. Army Soldier and Biological Chemical Command, said that just because a device could be used for illicit purposes does not necessarily make it illegal. “Keep in mind that there are endless items that can deliver chemical or biological agents. These include aerosol cans used for commercial deodorants, crop dusters, conventional munitions, plastic baggies (remember the Tokyo subway incident?), etc.” The experts agreed, but said if the patent language correctly indicated the system was designed specifically so it could disperse biological agents and nonlethal chemical agents such as incapacitants on a battlefield, it indicated treaty and federal law violations. The patent application does suggest that intent, said Jonathan Tucker, a chemical and biological arms control expert, currently a senior fellow at the U.S. Institute of Peace. “Certain words in the patent description raise some red flags, specifically the reference to the delivery of biological/chemical agents and the use in combat or noncombat operations,” he said. “Those specific words in that description raise concerns about the intent. And if the intent is for delivery of chemical or biological agents or the use of chemical incapacitants in a combat situation, those would be clear violations of the convention,” Tucker said. “There’s enough here. I could make a case that because it’s mentioned on a number of occasions that … it is designed to deliver biological agents,” Fidler said. Marie Chevrier, a University of Texas at Dallas arms control authority, also said the document could be read as an indication of purpose, saying it suggests “they knowingly developed a delivery system for biological agents as a weapon.” Mistaken Language Prior to Sewell’s statement today, Robinson said patent applications often are drafted to be as broad as possible “Basically, when somebody is patenting a system for disseminating a payload, they’ll think of any possible payload they might conceivably put in, in order to make a claim on it,” he said. “It was the patent lawyers for the Army, or whoever it was that got this patent, simply using boilerplate language is my guess,” Robinson said. Wheelis also said the language might have been crafted, “not so much to suggest that the U.S. is going to do this, but to make sure that — at least within the context of patent law — if anybody uses this munition or a munition designed on these principles, they are infringing on the U.S. patent.” Incapacitants Edward Hammond, co-director of the Sunshine Project, said his primary concern is that the grenade may be intended for use in dispersing so-called incapacitating agents on a battlefield. “When you are talking about a chemical or biological payload for use as a sort of an offensive weapon, the payload for this sucker is a calmative,” he said. The development and stockpiling of incapacitating agents has emerged recently as a concern among arms control experts and some governments, who say the Chemical Weapons Convention does not sufficiently define the legal boundaries for using such agents. Hammond has asserted that U.S. military-sponsored research on incapacitating agents is illegal, a charge denied by the military. In a rescue operation last year that is generally considered legal by international experts, Russian security forces used a chemical incapacitating aerosol to free hundreds of hostages and kill their captors. The chemical, however, unintentionally killed more than 100 hostages. A presentation on a component of the device, the aerosol dispersal mechanism, delivered publicly last year by a joint personnel from the U.S. Army Edgewood Chemical and Biological Center and a private contractor did not mention the types of materials that could be dispersed. It said the system is “suited to a variety of nonlethal applications,” listing “tactical concealment, sniper countermeasure, crowd control and dispersal, building clearing operations, [and] area denial to personnel.” Sewell said the projectile was investigated as a way to deliver “special effects payloads (especially obscurants) in MOUT (Military Operations in Urbanized Terrain) situations.” The Defense Department in its statement yesterday said, “The Army and all other components of DOD have no plans, programs, or intention to develop chemical or biological weapons prohibited by statute or treaty.”
| ||||||||||
Back to top
