Key Takeaways: Despite periodic mentions by aerospace innovators of “secret patents,” this author is not aware of any evidence of such patents. There may be confusion with “Secrecy Orders,” which apply to patent applications, but not to issued patents. Nonetheless, aerospace innovators should understand Secrecy Orders and the effect they can have on patent applications, such as preventing the issuance of a patent.
One will sometimes hear discussion of the United States Patent & Trademark Office (USPTO) issuing “secret patents.” A secret patent is supposedly an issued patent that is not published. It is hidden, not disclosed or known to the public. Only the government or some in the government know about it. It may have a similar status as conventional “classified” data – perhaps kept from those without a “need to know.” To this author’s knowledge, no such “secret patent” exists.
I may be one of those without a “need to know.” But after practicing in aerospace patents for over a decade, I am not aware of the phenomenon. To me, it is akin to the elusive Sasquatch.
This issue is relevant to aerospace and defense innovators. They have a definite “need to know” whether their patent on a potentially sensitive technology will forever be doomed to secrecy as a “secret patent.”
The closest thing to a secret patent that I am aware of in the United States is a Secrecy Order. Such Order can, in effect, also cause the innovation to be kept secret. But no patent ever issues. By law, the patent application is prevented from ever issuing as a patent.
The difference between an issued patent and a patent application is important. If an issued patent was kept secret, you would presumably have some right to exclude others from practicing the invention. But complexities inherent in such notion abound.
Consider providing notice to infringers (e.g., for damages). Would notice even be possible? Or consider the quid pro quo purpose of the patent system (i.e., sharing your invention with the public in exchange for 20 years of exclusivity). How is that goal furthered by non-published patents? If, on the other hand, you do not have such right to exclude, then what good would the secret patent be? Would the right to exclude be limited to excluding only others who are in the “need to know”? One can imagine some private, closed universe of parties all with the relevant “need to know” able to assert their patent rights against each other. But again, that is all like Sasquatch to me. Just speculation.
An issued patent is not a patent application. A patent application is just that – an application to obtain a patent. You first apply for the patent, and then the USPTO examines the application. If deemed patentable, then the patent is issued (or “granted”).
For patent applications, the secrecy issue is clearer. It is an issue about which we need not speculate. There are laws and regulations governing patent applications and Secrecy orders. As discussed in this article on Secrecy Orders:
A Secrecy Order can delay or even prevent issuance of a U.S. patent. Such Orders may even restrict commercial use of the technology described in the patent application. The Orders typically restrict technology with national security implications. Such technology may include atomic energy as well as military, aeronautics, and space technologies. However, the Orders can apply to technology in any field.
The Orders typically apply to patent applications resulting from collaboration with federal U.S. government agencies or departments. But these Orders can also apply to applications on technology developed independent of such government involvement.
As for the effect of such Order on examination of a patent application, the USPTO may still examine the application for patentability. However, “the USPTO will not publish the application while under the Order. If the application is allowable after examination on the merits, the USPTO suspends the application. The USPTO will not grant the patent. The USPTO will notify the applicant and the sponsoring agency or department that the application is allowed. However, only after the USPTO lifts the Order will the USPTO provide a Notice of Allowance and issue the patent.”
The USPTO or relevant government agency typically identifies an application subject to a Secrecy Order early in the application process. But the USPTO could apply the Secrecy Order much later in examination. Perhaps the Secrecy Order could be issued after allowance of the application, but prior to issuance of the patent. Such patent would presumably be pulled from issuance for review. Perhaps this is what some refer to as “secret patents”?
In the end, we could all be talking about the same thing. Patent practitioners are well aware of the crucial difference between a patent application and an issued patent (the latter sometimes being called a patent “grant”). Perhaps non-patent practitioners are using the term “patent” loosely, to refer to both patents and patent applications.
Whatever the case, aerospace innovators should definitely be aware of Secrecy Orders and their potential secrecy effect on their patent applications. As for secrecy of issued patents – well, if you have evidence of one of these mysterious creatures in the wild, I would love to see the tape!
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