MPEP § 120 — MPEP § 120
Current through: 2022-07-01

120-Secrecy Orders 
 
 

 
 
 
 
 
 
 
 

 

 
 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 
 
 
 

 
 
 
 
 
 
 
 
 
 
 

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 Manual of Patent Examining Procedure 

 Chapter 0100 

 Section 120 
 

 
 
 
 
 
 120 Secrecy Orders [R-07.2022]

 
 37 CFR 5.1 Correspondence. 

 
 (a) All correspondence in connection with this part, including
 petitions, should be addressed to: Mail Stop L&R, Commissioner for Patents,
 P.O. Box 1450, Alexandria, Virginia 22313-1450.
 

 (b) Definitions. 
 (1) Application as used in this part includes
 provisional applications (§ 1.9(a)(2) of this
 chapter), nonprovisional applications (§ 1.9(a)(3) ), international applications (§
 1.9(b) ), or international design applications (§
 1.9(n) ). 
 

 (2) Foreign application as used in this part
 includes, for filing in a foreign country or in a foreign or international
 intellectual property authority (other than the United States Patent and
 Trademark Office acting as a Receiving Office for international applications
 ( 35
 U.S.C. 361 , 37 CFR 1.412 ) or as an
 office of indirect filing for international design applications
 ( 35 U.S.C. 382 ,
 37 CFR 1.1002 )) any of
 the following: An application for patent, international application,
 international design application, or application for the registration of a
 utility model, industrial design, or model.
 

 
 

 (c) Patent applications and documents relating thereto that are
 national security classified (see § 1.9(i) of this chapter) and
 contain authorized national security markings ( e.g., 
 “Confidential,” “Secret” or “Top Secret”) are accepted by the Office. National
 security classified documents filed in the Office must be either hand-carried to
 Licensing and Review or mailed to the Office in compliance with paragraph (a) of
 this section. 
 

 (d) The applicant in a national security classified patent application
 must obtain a secrecy order pursuant to § 5.2(a) . If a national security
 classified patent application is filed without a notification pursuant to §
 5.2(a) , the Office will set a time period within which
 either the application must be declassified, or the application must be placed
 under a secrecy order pursuant to § 5.2(a) , or the applicant must
 submit evidence of a good faith effort to obtain a secrecy order pursuant to §
 5.2(a) from the relevant department or agency in order to
 prevent abandonment of the application. If evidence of a good faith effort to
 obtain a secrecy order pursuant to § 5.2(a) from the relevant
 department or agency is submitted by the applicant within the time period set by
 the Office, but the application has not been declassified or placed under a
 secrecy order pursuant to § 5.2(a) , the Office will again
 set a time period within which either the application must be declassified, or the
 application must be placed under a secrecy order pursuant to § 5.2(a) , or
 the applicant must submit evidence of a good faith effort to again obtain a
 secrecy order pursuant to § 5.2(a) from the relevant
 department or agency in order to prevent abandonment of the application. 
 

 (e) An application will not be published under § 1.211 of
 this chapter or allowed under § 1.311 of this chapter if
 publication or disclosure of the application would be detrimental to national
 security. An application under national security review will not be published at
 least until six months from its filing date or three months from the date the
 application was referred to a defense agency, whichever is later. A national
 security classified patent application will not be published under §
 1.211 of this chapter or allowed under § 1.311 of
 this chapter until the application is declassified and any secrecy order under §
 5.2(a) has been rescinded. 
 

 (f) Applications on inventions made outside the United States and on
 inventions in which a U.S. Government defense agency has a property interest will
 not be made available to defense agencies. 
 

 
 

 

 
 37 CFR 5.2 Secrecy order. 

 
 (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) .
 

 
 

 

 
 37 CFR 5.3 Prosecution of application under secrecy orders; withholding patent. 

 Unless specifically ordered otherwise, action on the application by the
 Office and prosecution by the applicant will proceed during the time an application is
 under secrecy order to the point indicated in this section:
 

 
 (a) National applications under secrecy order which come to a final
 rejection must be appealed or otherwise prosecuted to avoid abandonment. Appeals
 in such cases must be completed by the applicant but unless otherwise specifically
 ordered by the Commissioner for Patents will not be set for hearing until the
 secrecy order is removed.
 

 (b) An interference or derivation will not be instituted involving a
 national application under secrecy order. An applicant whose application is under
 secrecy order may suggest an interference (§ 41.202(a) of this title), but
 the Office will not act on the request while the application remains under a
 secrecy order.
 

 (c) When the national application is found to be in condition for
 allowance except for the secrecy order the applicant and the agency which caused
 the secrecy order to be issued will be notified. This notice (which is not a
 notice of allowance under § 1.311 of this chapter) does
 not require reply by the applicant and places the national application in a
 condition of suspension until the secrecy order is removed. When the secrecy order
 is removed the Patent and Trademark Office will issue a notice of allowance under
 § 1.311 of this chapter, or take such other action as may
 then be warranted.
 

 (d) International applications and international design applications
 under secrecy order will not be mailed, delivered, or otherwise transmitted to the
 international authorities or the applicant. International applications under
 secrecy order will be processed up to the point where, if it were not for the
 secrecy order, record and search copies would be transmitted to the international
 authorities or the applicant.
 

 
 

 

 
 37 CFR 5.4 Petition for rescission of secrecy order. 

 
 (a) A petition for rescission or removal of a secrecy order may be
 filed by, or on behalf of, any principal affected thereby. Such petition may be in
 letter form, and it must be in duplicate.
 

 (b) The petition must recite any and all facts that purport to render
 the order ineffectual or futile if this is the basis of the petition. When prior
 publications or patents are alleged the petition must give complete data as to
 such publications or patents and should be accompanied by copies thereof.
 

 (c) The petition must identify any contract between the Government and
 any of the principals under which the subject matter of the application or any
 significant part thereof was developed or to which the subject matter is otherwise
 related. If there is no such contract, the petition must so state.
 

 (d) Appeal to the Secretary of Commerce, as provided by
 35 U.S.C.
 181 , from a secrecy order cannot be taken until after a
 petition for rescission of the secrecy order has been made and denied. Appeal must
 be taken within sixty days from the date of the denial, and the party appealing,
 as well as the department or agency which caused the order to be issued, will be
 notified of the time and place of hearing.
 

 
 

 

 
 37 CFR 5.5 Permit to disclose or modification of secrecy order. 

 
 (a) Consent to disclosure, or to the filing of an application abroad,
 as provided in 35 U.S.C. 182 , shall be made by a “permit” or
 “modification” of the secrecy order.
 

 (b) Petitions for a permit or modification must fully recite the reason
 or purpose for the proposed disclosure. Where any proposed disclosee is known to
 be cleared by a defense agency to receive classified information, adequate
 explanation of such clearance should be made in the petition including the name of
 the agency or department granting the clearance and the date and degree thereof.
 The petition must be filed in duplicate.
 

 (c) In a petition for modification of a secrecy order to permit filing
 abroad, all countries in which it is proposed to file must be made known, as well
 as all attorneys, agents and others to whom the material will be consigned prior
 to being lodged in the foreign patent office. The petition should include a
 statement vouching for the loyalty and integrity of the proposed disclosees and
 where their clearance status in this or the foreign country is known all details
 should be given.
 

 (d) Consent to the disclosure of subject matter from one application
 under secrecy order may be deemed to be consent to the disclosure of common
 subject matter in other applications under secrecy order so long as not taken out
 of context in a manner disclosing material beyond the modification granted in the
 first application.
 

 (e) Organizations requiring consent for disclosure of applications
 under secrecy order to persons or organizations in connection with repeated
 routine operation may petition for such consent in the form of a general permit.
 To be successful such petitions must ordinarily recite the security clearance
 status of the disclosees as sufficient for the highest classification of material
 that may be involved.
 

 
 

 

 I. SECRECY ORDER TYPES Three types of Secrecy Orders, each of a different scope, are issued as
 follows:
 

 
 (A) 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 in accordance with DoD
 Directive 5230.25 “Withholding of Unclassified Technical Data From Public
 Disclosure,” based on 10 U.S.C. 130 “Authority to Withhold From Public Disclosure
 Certain Technical Data.”
 

 (B) 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, DD Form 441. If
 the application is classifiable, this secrecy order allows disclosure of the
 technical information as if it were classified as prescribed in the National
 Industrial Security Program Operating Manual (NISPOM).
 

 (C) 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.
 

 
 The Type I Secrecy Order is intended to permit the widest utilization of
 the technical data in the patent application while still controlling any publication or
 disclosure which would result in an unlawful exportation. This type of Secrecy Order
 also identifies the countries where corresponding patent applications may be filed.
 Countries with which the United States has reciprocal security agreements are:
 Australia, Belgium, Canada, Denmark, France, Germany, Greece, Italy, Japan, Luxembourg,
 Netherlands, Norway, Portugal, Republic of Korea, Spain, Sweden, Turkey and the United
 Kingdom. Please note that applications subject to a secrecy order cannot be filed
 directly with the European Patent Office since no reciprocal security agreement with
 this organization exists. Applications must be filed in the individual EPO member
 countries identified above. Applicant must arrange filing of such subject matter through
 the agency sponsoring the secrecy order.
 

 The intent of the Type II Secrecy Order is to treat classified and
 classifiable technical data presented as a patent application in the same manner as any
 other classified material. Accordingly, this Secrecy Order will include a notification
 of the classification level of the technical data in the application.
 

 The Type III Secrecy Order is used where the other types of Orders do not
 apply, including Orders issued by direction of agencies other than the Department of
 Defense. 
 

 A Secrecy Order should not be construed in any way to mean that the
 Government has adopted or contemplates adoption of the alleged invention disclosed in an
 application; nor is it any indication of the value of such invention.
 

 II. RELATED SUBJECT MATTER The Secrecy Orders apply to the subject matter of the invention, not just
 to the patent application itself. Thus, the Secrecy Order restricts disclosure or
 publication of the invention in any form. Furthermore, other patent applications already
 filed or later filed which contain any significant part of the subject matter of the
 application also fall within the scope of the Order and must be brought to the attention
 of Licensing & Review if such applications are not already under Secrecy Order by
 the Commissioner.
 

 The effects of a Secrecy Order are detailed in the notifying letter and
 include restrictions on disclosure of the invention and delay of any patent grant until
 the Order is rescinded.
 

 III. CORRESPONDENCE When the Secrecy Order issues, the law specifies that the subject matter
 or any material information relevant to the application, including unpublished details
 of the invention, shall not be published or disclosed to any person not aware of the
 invention prior to the date of the Order, including any employee of the principals
 except as permitted by the Secrecy Order. The law also requires that all information
 material to the subject matter of the application be kept in confidence, unless written
 permission to disclose is first obtained from the Commissioner for Patents except as
 provided by the Secrecy Order. Therefore, all correspondence to be filed in an
 application which is subject to a secrecy order and which is directly related to the
 subject matter covered by the Secrecy Order must be transmitted to the Office in a
 manner which would preclude disclosure to unauthorized individuals and addressed as set
 forth in 37 CFR
 5.1(a) . Use of facsimile transmission is not permitted.
 37 CFR
 1.6(d)(6) . 
 

 Subject matter under Secrecy Order must be safeguarded under conditions
 that will provide adequate protection and prevent access by unauthorized persons.
 

 When applicants desire to change the Power of Attorney in an application
 under Secrecy Order, applicant is required to provide a statement that the new
 attorney(s) has been apprised of the secrecy order. 
 

 In the case of applications bearing National Security Classification
 markings pursuant to an Executive Order, e.g., “Confidential” or “Secret,” applicants
 must provide a DoD cage code as evidence of the ability to accept and store classified
 information. Applicants no longer need to provide individual personal information to
 ensure a proper security clearance. Personnel controlling the cleared correspondence
 address bear the burden of ensuring that individuals obtaining classified information
 from the correspondence address follow the proper procedures for handling classified
 information.
 

 IV. INTERNATIONAL APPLICATIONS (PCT) AND INTERNATIONAL DESIGN APPLICATIONS If the Secrecy Order is applied to an international application or an
 international design application, the application will not be mailed, delivered, or
 otherwise transmitted to the international authorities or the applicant as long as the
 Secrecy Order remains in effect. 
 

 An international application will be considered withdrawn
 (abandoned) if the Secrecy Order remains in effect at the end of the time limit under
 PCT Rule
 22.3 because the Record Copy of the international application was
 not received in time by the International Bureau. 37 CFR 5.3(d) , PCT Article 12(3) ,
 and PCT Rule
 22.3 . If the United States of America has been designated,
 however, it is possible to save the U.S. filing date, by fulfilling the requirements of
 35 U.S.C.
 371(c) prior to the withdrawal.
 

 V. CHANGES IN SECRECY ORDERS Applicants may petition for rescission or modification of the Secrecy
 Order. For example, if the applicant believes that certain existing facts or
 circumstances would render the Secrecy Order ineffectual, they may informally contact
 the sponsoring agency to discuss these facts or formally petition the Commissioner for
 Patents to rescind the Order. Rescission of a Secrecy Order may also be effected in some
 circumstances by expunging the sensitive subject matter from the disclosure, provided
 the sensitive subject matter is not necessary for an enabling disclosure under
 35 U.S.C.
 112 . See MPEP § 724.05 . The defense agency
 identified with the Secrecy Order as sponsoring the Order should be contacted directly
 for assistance in determining what subject matter in the application is sensitive, and
 whether the agency would agree to rescind the Order upon expunging this subject matter.
 The applicant may also petition the Commissioner for Patents for a permit to disclose
 the invention to another or to modify the Secrecy Order stating fully the reason or
 purpose for disclosure or modification. An example of such a situation would be a
 request to file the application in a foreign country. The requirements for petitions are
 described in 37 CFR
 5.4 and 5.5 . The law also provides that
 if an appeal is necessary, it may be taken to the Secretary of Commerce. Any petition or
 appeal should be addressed to the Mail Stop L&R, Commissioner for Patents, P.O. Box
 1450, Alexandria, Virginia, 22313-1450.
 

 VI. IMPROPER OR INADVERTENT DISCLOSURE If, prior to or after the issuance of the Secrecy Order, any significant
 part of the subject matter or material information relevant to the application has been
 or is revealed to any U.S. citizen in the United States, the principals must promptly
 inform such person of the Secrecy Order and the penalties for improper disclosure. If
 such part of the subject matter was or is disclosed to any person in a foreign country
 or foreign national in the U.S., the principals must not inform such person of the
 Secrecy Order, but instead must promptly furnish to Mail Stop L&R, Commissioner for
 Patents, P.O. Box 1450, Alexandria, Virginia, 22313-1450 the following information to
 the extent not already furnished: date of disclosure; name and address of the disclosee;
 identification of such subject matter; and any authorization by a U.S. government agency
 to export such subject matter. If the subject matter is included in any foreign patent
 application or patent, this should be identified.
 

 VII. EXPIRATION Under the provision of 35 U.S.C. 181 , a Secrecy Order
 remains 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.
 

 The expiration of or failure to renew a Secrecy Order does not lessen in
 any way the responsibility of the principals for the security of the subject matter if
 it is subject to the provisions of Exec. Order No. 12958 or the Atomic Energy Act of
 1954, as amended, 42 U.S.C. 141 et. seq. and 42 U.S.C. 2181
 et. seq. or other applicable law unless the principals have been
 expressly notified that the subject patent application has been declassified by the
 proper authorities and the security markings have been authorized to be canceled or
 removed.
 

 [top] 

 

 

 
 

 
 

 

 

 

 
 
 
 101-General 

 102-Information as to Status of an Application 

 103-Right of Public To Inspect Patent Files and Some Application Files 

 104-Power to Inspect Application 

 105-Suspended or Excluded Practitioner Cannot Inspect 

 106-Control of Inspection by Assignee 
 106.01-Rights of Assignee of Part Interest 

 
 

 107‑109-[Reserved] 

 110-Confidential Nature of International Applications 

 111‑114-[Reserved] 

 115-Review of Applications for National Security and Property Rights Issues 

 116‑119-[Reserved] 

 120-Secrecy Orders 

 121-Handling of Applications under Secrecy Order and/or Bearing National Security Markings 

 122‑129-[Reserved] 

 130-Examination of Secrecy Order Cases 

 131‑139-[Reserved] 

 140-Foreign Filing Licenses 

 141‑149-[Reserved] 

 150-Statements to DOE and NASA 

 151-Content of the Statements 

 

 

 
 

 
 
 

 
 

 

 
 
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 Last Modified: 
 
 03/09/2026 20:49:25