Patent Law FAQ

For applications filed with apparent national security markings, the USPTO will:

1. Notify the applicant via Licensing and Review
2. Ask the applicant to either:
   • Explain the markings
   • Remove improper markings
   • Obtain a Secrecy Order if necessary
3. Potentially refer the application to a defense agency for review under 35 U.S.C. 181 second paragraph if improper markings are found and removed

The MPEP states:

All applications or papers, including non-patent literature, in the U.S. Patent and Trademark Office bearing words such as “Secret,” “Confidential,” “ITAR” or similar must be promptly referred to Licensing and Review for clarification or security treatment.

These papers cannot be placed in public records like patented files until the security markings are declassified or explained.

When an examiner encounters an application with national security markings but no Secrecy Order, they must take specific actions. The MPEP instructs: In this case, the examiner should require the applicant to seek imposition of a Secrecy Order or authority to cancel the markings. This should preferably be done with the first action and, in any event, prior to final disposition of the application. This ensures that potentially sensitive information is properly handled during the examination process.

For more information on national security markings, visit: national security markings.

For more information on patent examination, visit: patent examination.

If an examiner comes across a patent application that contains national security markings but does not have a Secrecy Order imposed, MPEP 130 instructs that “the examiner should require the applicant to seek imposition of a Secrecy Order or authority to cancel the markings.” This should be done preferably with the first office action and before final disposition of the application.

37 CFR 5.1(d) states that if no Secrecy Order has issued, the USPTO will set a time period for the applicant to take one of three actions to prevent abandonment:

1. Obtain a Secrecy Order
2. Declassify the application
3. Submit evidence of a good faith effort to obtain a Secrecy Order under 37 CFR 5.2(a)

Additionally, per 37 CFR 5.1(e), “a national security classified patent application will not be allowed until the application is declassified and any Secrecy Order pursuant to 37 CFR 5.2(a) has been rescinded.”

When an examiner encounters an application with national security markings but no Secrecy Order, they must take specific actions. The MPEP instructs: In this case, the examiner should require the applicant to seek imposition of a Secrecy Order or authority to cancel the markings. This should preferably be done with the first action and, in any event, prior to final disposition of the application. This ensures that potentially sensitive information is properly handled during the examination process.

For more information on national security markings, visit: national security markings.

For more information on patent examination, visit: patent examination.

For applications filed with apparent national security markings, the USPTO will:

1. Notify the applicant via Licensing and Review
2. Ask the applicant to either:
   • Explain the markings
   • Remove improper markings
   • Obtain a Secrecy Order if necessary
3. Potentially refer the application to a defense agency for review under 35 U.S.C. 181 second paragraph if improper markings are found and removed

If an examiner comes across a patent application that contains national security markings but does not have a Secrecy Order imposed, MPEP 130 instructs that “the examiner should require the applicant to seek imposition of a Secrecy Order or authority to cancel the markings.” This should be done preferably with the first office action and before final disposition of the application.

37 CFR 5.1(d) states that if no Secrecy Order has issued, the USPTO will set a time period for the applicant to take one of three actions to prevent abandonment:

1. Obtain a Secrecy Order
2. Declassify the application
3. Submit evidence of a good faith effort to obtain a Secrecy Order under 37 CFR 5.2(a)

Additionally, per 37 CFR 5.1(e), “a national security classified patent application will not be allowed until the application is declassified and any Secrecy Order pursuant to 37 CFR 5.2(a) has been rescinded.”

The MPEP states:

All applications or papers, including non-patent literature, in the U.S. Patent and Trademark Office bearing words such as “Secret,” “Confidential,” “ITAR” or similar must be promptly referred to Licensing and Review for clarification or security treatment.

These papers cannot be placed in public records like patented files until the security markings are declassified or explained.

When an examiner encounters an application with national security markings but no Secrecy Order, they must take specific actions. The MPEP instructs: In this case, the examiner should require the applicant to seek imposition of a Secrecy Order or authority to cancel the markings. This should preferably be done with the first action and, in any event, prior to final disposition of the application. This ensures that potentially sensitive information is properly handled during the examination process.

For more information on national security markings, visit: national security markings.

For more information on patent examination, visit: patent examination.