Chapter 100: Secrecy, Access, National Security and Foreign Filing
This chapter covers the confidentiality of patent applications and patent related documents. The focus is on who may or may not access particular application types.
Any patent application that contains a sensitive issue will be placed under a secrecy order by the PTO. Absolutely no member of the public may view these patents even after they have issued.
Foreign filing licenses must be issued if an applicant wants to apply for a patent on the same subject matter in a foreign country immediately after filing for a U.S. patent.
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The Executive Summaries from the main chapter sections have been copied here for your convenience (subsections are not included here). They will help you remember what each main section of the Guidebook (MPEP) covers as you answer the questions from the quizzes above.
Patent applications must be kept confidential. Approved patents, however, are freely open to the public (unless they are under a secrecy order).
There are 3 major types of patent status. These include pending applications, abandoned applications, and issued patents. 37 C.F.R. 1.14 discusses the rules regarding the confidentiality of an application’s status.
In addition, 37 C.F.R. 1.14 covers the confidentiality of patent applications in regards to instances when application status may be revealed to private parties within the public. 35 U.S.C. 122 states the specific times when patent related documents will be published by the PTO.
This section discusses exactly what status information is limited to. A requester seeking status information regarding an application should check the information on PAIR and FIU. In addition, this section outlines who is entitled to status information on non published, pending or abandoned applications.
37 C.F.R. 1.11 discusses the rights the public has to inspect files (such as patents and certain types of applications). This section outlines the exact documents accessible to the public. It includes a brief discussion on accessing image file wrapper (IFW) applications, access to published U.S. patent applications, unpublished abandoned and pending applications that are identified, and access where part of an application is incorporated by reference in a U.S. patent application publication or a U.S. patent.
In addition, this section covers petitions for access by third parties, access where a patent relies on the filing date of an earlier but still pending application, access to provisional applications, access to applications involved in interferences or trials through the Patent Trial and Appeal Board, defensive publications, reissue applications, and requests for reexamination.
This section discusses who has the authority to grant access to applications. The authority to grant access is different for applications filed before and after September 16, 2012. This section also discusses who may access patent applications (both provisional and nonprovisional) and Board records.
This section discusses the rights of an assignee of the entire or partial interest. Both are entitled the right to inspect the application.
This section discusses accessibility in published international applications. 37 CFR 1.14(g) applies to international applications having an international filing date on or after November 29, 2000.
Applications are screened upon receipt in the USPTO for subject matter that, if disclosed, might impact national security. All applications are required to be cleared from secrecy review before forwarding to issue.
It is possible for patent applications to contain issues sensitive to national security. If an application is found to contain issues that could threaten national security, the PTO will place a secrecy order on it. The application will not be published or allowed to issue until the secrecy order is removed.
This section covers both expedited foreign filing licenses and retroactive licenses. Essentially, if an inventor files a patent application in the U.S., he or she may not file the same application in a foreign country prior to the passing of six months without first obtaining a foreign filing license. If the inventor files in a foreign country before the 6 month waiting period has passed without getting a license first, he or she must immediately file for a retroactive license.
No patents for nuclear material or atomic energy will be issued except under special circumstances along with a statement filed with the application or sent in within 30 days after requested by the Director of the USPTO.
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