MPEP § 2306 — Secrecy Order Cases (Annotated Rules)

§2306 Secrecy Order Cases

USPTO MPEP version: BlueIron's Update: 2025-12-31
4 Citations

This page consolidates and annotates all enforceable requirements under MPEP § 2306, including statutory authority, regulatory rules, examiner guidance, and practice notes. It is provided as guidance, with links to the ground truth sources. This is information only, it is not legal advice.

Secrecy Order Cases

This section addresses Secrecy Order Cases. Primary authority: 37 CFR 41.109, 37 CFR 41.102, and 37 CFR 5.3. Contains: 3 guidance statements, 2 permissions, and 3 other statements.

Key Rules

Topic

Statutory Authority for Examination

4 rules
StatutoryInformativeAlways
[mpep-2306-7903b33a4e4de90dededa15c]
Transistor Claim Must Be Disclosed In Commercial Context
Note:
The claim for a useful transistor in a commercial context must be disclosed and allowed before the application can issue, even if it is also claimed in a classified missile control circuit.

Application L discloses and claims a transistor that is useful in a commercial context. Application M discloses the same transistor in the context of a missile control circuit, but claims only the transistor. A secrecy order is placed on application M. Once examination of application L is completed and the transistor claim is allowable, application L should pass to issue.

Jump to MPEP Source · 37 CFR 5.3Statutory Authority for ExaminationExamination ProceduresExaminer's Action at Allowance
StatutoryInformativeAlways
[mpep-2306-f4271a2202f9cee1096422f8]
Transistor Claim for Missile Circuit Under Secrecy Order
Note:
When a transistor disclosed in the context of a missile control circuit is claimed under a secrecy order, it must be examined and allowed before proceeding to issue.

Application L discloses and claims a transistor that is useful in a commercial context. Application M discloses the same transistor in the context of a missile control circuit, but claims only the transistor. A secrecy order is placed on application M. Once examination of application L is completed and the transistor claim is allowable, application L should pass to issue.

Jump to MPEP Source · 37 CFR 5.3Statutory Authority for ExaminationExamination ProceduresExaminer's Action at Allowance
StatutoryInformativeAlways
[mpep-2306-b662f4cb005f6772744e82fe]
Secrecy Order for Missile Control Circuit Transistor
Note:
A secrecy order is placed on application M disclosing a transistor used in missile control circuits, ensuring it does not proceed to issue until examination of related application L is complete and the claim is allowable.

Application L discloses and claims a transistor that is useful in a commercial context. Application M discloses the same transistor in the context of a missile control circuit, but claims only the transistor. A secrecy order is placed on application M. Once examination of application L is completed and the transistor claim is allowable, application L should pass to issue.

Jump to MPEP Source · 37 CFR 5.3Statutory Authority for ExaminationExamination ProceduresSecrecy Orders
StatutoryRecommendedAlways
[mpep-2306-ca327184e8ff368b3fb55bab]
Transistor Claim Allowance Requires Issue of Application L
Note:
Once the transistor claim in application L is found allowable after examination, the application must proceed to issue.

Application L discloses and claims a transistor that is useful in a commercial context. Application M discloses the same transistor in the context of a missile control circuit, but claims only the transistor. A secrecy order is placed on application M. Once examination of application L is completed and the transistor claim is allowable, application L should pass to issue.

Jump to MPEP Source · 37 CFR 5.3Statutory Authority for ExaminationExamination ProceduresExaminer's Action at Allowance
Topic

Secrecy Orders

2 rules
StatutoryPermittedAlways
[mpep-2306-27c60a5dc457c2c607edde3c]
Interference May Be Reconsidered After Secrecy Order Expiration
Note:
If a secrecy order expires and the examination is completed according to 37 CFR 41.102, an interference may be reconsidered.

Once an interference is declared, an opposing party is entitled to access to the application and benefit applications pursuant to 37 CFR 41.109. See MPEP § 2307.02. Consequently, an interference should not be suggested for an application under a secrecy order. See MPEP §§ 120 and 130. When a secrecy order expires or is rescinded, if the examination is otherwise completed in accordance with 37 CFR 41.102, then the need for an interference may be reconsidered.

Jump to MPEP Source · 37 CFR 41.109Secrecy OrdersAccess to Patent Application Files (MPEP 101-106)PTAB Contested Case Procedures
StatutoryRecommendedAlways
[mpep-2306-b2348a3cfc736ceac133c0be]
Interfering Claims Between Applications Under Secrecy Orders
Note:
If an application not under a secrecy order has claims that interfere with those of an application under a secrecy order, the non-secret application should be passed to issue as a patent once the secrecy order is lifted.

If an application not under a secrecy order has allowable claims that interfere with allowable claims of an application that is under a secrecy order, then the application that is not under the secrecy order should be passed to issue as a patent. An interference may be suggested with the application and the patent (unless the patent has expired) once the secrecy order has been lifted.

Jump to MPEP Source · 37 CFR 5.3Secrecy OrdersLate Payment and Reinstatement
Topic

Access to Patent Application Files (MPEP 101-106)

1 rules
StatutoryRecommendedAlways
[mpep-2306-fb795d76e5a3be092ab69ffd]
Interference Not Suggested for Secrecy Order Cases
Note:
An interference should not be suggested for an application under a secrecy order, and opposing parties are entitled to access the application and benefit applications.

Once an interference is declared, an opposing party is entitled to access to the application and benefit applications pursuant to 37 CFR 41.109. See MPEP § 2307.02. Consequently, an interference should not be suggested for an application under a secrecy order. See MPEP §§ 120 and 130. When a secrecy order expires or is rescinded, if the examination is otherwise completed in accordance with 37 CFR 41.102, then the need for an interference may be reconsidered.

Jump to MPEP Source · 37 CFR 41.109Access to Patent Application Files (MPEP 101-106)PTAB Contested Case ProceduresSecrecy Orders
Topic

Late Payment and Reinstatement

1 rules
StatutoryPermittedAlways
[mpep-2306-a1e5ab6ce3923e18fe42439e]
Interference Suggested After Secrecy Lifted
Note:
An interference may be suggested with an application and a patent once the secrecy order has been lifted, unless the patent has expired.

If an application not under a secrecy order has allowable claims that interfere with allowable claims of an application that is under a secrecy order, then the application that is not under the secrecy order should be passed to issue as a patent. An interference may be suggested with the application and the patent (unless the patent has expired) once the secrecy order has been lifted.

Jump to MPEP Source · 37 CFR 5.3Late Payment and ReinstatementSecrecy Orders

Citations

Primary topicCitation
Access to Patent Application Files (MPEP 101-106)
Secrecy Orders		37 CFR § 41.102
Access to Patent Application Files (MPEP 101-106)
Secrecy Orders		37 CFR § 41.109
Access to Patent Application Files (MPEP 101-106)
Secrecy Orders		MPEP § 120
Access to Patent Application Files (MPEP 101-106)
Secrecy Orders		MPEP § 2307.02

Source Text from USPTO’s MPEP

This is an exact copy of the MPEP from the USPTO. It is here for your reference to see the section in context.

BlueIron Last Updated: 2025-12-31