120 Secrecy Orders
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(a) When notified by the chief officer of a defense agency that publication or disclosure of the invention by the granting of a patent would be detrimental to the national security, an order that the invention be kept secret will be issued by the Commissioner for Patents.
(b) Any request for compensation as provided in 35 U.S.C. 183 must not be made to the Patent and Trademark Office, but directly to the department or agency which caused the secrecy order to be issued.
(c) An application disclosing any significant part of the subject matter of an application under a secrecy order pursuant to paragraph (a) of this section also falls within the scope of such secrecy order. Any such application that is pending before the Office must be promptly brought to the attention of Licensing and Review, unless such application is itself under a secrecy order pursuant to paragraph (a) of this section. Any subsequently filed application containing any significant part of the subject matter of an application under a secrecy order pursuant to paragraph (a) of this section must either be hand-carried to Licensing and Review or mailed to the Office in compliance with § 5.1(a).
SECRECY ORDER TYPES
There are 3 types of Secrecy Orders, these include the following:
1. Secrecy Order and Permit for Foreign Filing in Certain Countries (Type I secrecy order)
- To be used for those patent applications that disclose critical technology with military or space application
2. Secrecy Order and Permit for Disclosing Classified Information (Type II secrecy order)
- To be used for those patent applications which contain data that is properly classified or classifiable under a security guideline where the patent application owner has a current DoD Security Agreement.
3. General Secrecy Order (Type III secrecy order)
- To be used for those patent applications that contain data deemed detrimental to national security if published or disclosed, including that data properly classifiable under a security guideline where the patent application owner does not have a DoD Security Agreement.
- The order prevents disclosure of the subject matter to anyone without an express written consent from the Commissioner for Patents. However, quite often this type of secrecy order includes a permit “Permit A” which relaxes the disclosure restrictions as set forth in the permit.
EXPIRATION
Secrecy Orders remain in effect for a period of 1 year from its date of issuance.
- A Secrecy Order may be renewed for additional periods of not more than 1 year upon notice by a government agency that the national interest so requires.
- The applicant is notified of any such renewal.
Although a Secrecy Order is limited to 1 year, it's possible for the PTO to continuously renew the Secrecy Order and keep the patent application under wraps indefinitely.
