US Government Secrecy Orders

Open Government Advocate Steve Aftergood has provides some numbers on USPTO Secrecy Orders. [FAS BLOG][New Data].  According to the USPTO FOIA response, over 5,500 pending applications are currently held in limbo under a secrecy order.  Because the inventions are being kept secret, we cannot know whether the secrecy order is a valid exercise of government power.  Aftergood writes:

There is nothing in the raw numbers that would provide an indication of the validity of the decision to block disclosure of a patent application, whether a secrecy order was appealed or challenged, and what adverse impacts, if any, such an order might have had.

Some recently declassified inventions include a really interesting RADAR cloaking device that is now protected by US Patent No. 8,836,569. See also MPEP 120.

25 thoughts on “US Government Secrecy Orders

  1. 7

    If anyone wants to look at the file wrapper of an issued patent that appears to have been at least delayed by the secrecy order review process, checkout 7,503,511.

    The application was filed on 8-4-05, and didn’t publish until 1-8-09. The PTO gets the secrecy order recommendation back around 9-5-08. The “any document coming from L and R” provides a little transparency into the process. Apprently, the Army sent the application off to NASA and the Air Force took until 9-3-08 to clear the application. Don’t have time to actually see if prosecution was delayed due to the secrecy review, but the application gets allowed at roughly the same time the Air Force signs off.

    It looks like this is the only patent SpaceX has assigned to it.

      1. 6.1.2

        But also going to Bob’s stated concern, I can see some employers almost reflexively ordering their people to stop using their work emails for such subscriptions…

  2. 5

    Does anyone else find it neatly appropriate that the inventor of this surveillance-defeating device is named Jesse James?

  3. 4

    How many requests for secrecy orders are rejected each year? Are the requests for secrecy orders themselves kept secret, even when they are rejected?

      1. 4.1.1

        Technically, whatever defense agency is involved recommends the secrecy order to the PTO, and the PTO actually issues the secrecy order. So I think Malcolm was asking how often the PTO declines the request from the recommending office. 37 CFR 5.2 indicates that, by rule, the PTO always issues the order upon defense agency request.


          37 CFR 5.2 indicates that, by rule, the PTO always issues the order upon defense agency request.

          And that’s the only way that an application gets “protected” in this manner? When a defence agency makes the request?

          Are all these “secret” applications assigned to the US government, then?


            No, but they get to read them before publication. My understanding (which may be wrong) is that we have people who review every application during initial processing and send anything that looks juicy to our Licensing and Review group. L&R forwards the super-juicy applications to one or more external agencies (whether some part of DoD, DHS, DoJ, etc.) for review, and they make the recommendation. For more recent applications, some of this info will show up in Public PAIR after publication, in the “Transaction History” tab. (The one Dennis posted above is too old to include this information.)

            For applications that get to that stage, a form always goes in the file to indicate the specific people in the outside agencies who reviewed an application and decided it did or didn’t need a secrecy order, but the vast majority of applications are not reviewed outside the PTO and don’t get one of those forms at all.


              Thanks. Fascinating.

              I’d be very curious to know how many published applications are currently in PAIR with a form stating that the application was reviewed but didn’t make the “must be kept out of the hands of the enemy” cut.

              Is that number rising or falling?

              The possibility for chicanery/shenanigans between the USPTO, the Federal government and its myriad buddies in the defense-related industry (including contractors working for the NSA) seems fantastically ripe.


                All of them.

                The review occurs prior to issuance of the “Foreign Filing License.”

                That license is typically issued a few weeks/months after the application is filed. If that license isn’t issued, then a secrecy order is….and I’m pretty sure that means the application wont be published or show up in PAIR.

                1. You’re correct that secret applications don’t appear in PAIR because they are unpublished. But internally, while we can access the application number and see the bibliographic data, none of the papers filed in the case show up (presumably unless you have the necessary clearance).

      2. 4.1.2

        How does one reject an order?

        I’m referring to the request that the application be examined “secretly”.

  4. 3

    In my limited experience with applications stuck* under secrecy orders years ago, one reason for the large number reported above is that no attorney authorized to have access to such an application has asked for the secrecy order to be reconsidered and removed even years later when the disclosed invention may have become either obsolete or publicly disclosed.

    *However, as I recall, some PTO prosecution of such applications under a secrecy order can continue, but not to publication or issuance.

    1. 3.1

      P.S. if one of these applications is rotting on your law firm or company docket for years you may have a professional obligation to either make some occasional request to get Uncle Sam’s secrecy order lifted, or to seek client permission to abandon the application.

  5. 2

    Uh oh –

    Looks like they have a method claim to the abstract idea of smearing radar. Guess that means the apparatus claims are to be 101’ed too.

    43. The method of defeating detection of a remote radar reflective target by synthetic aperture radars, comprising the steps of:
    modulating, at the location of said radar reflective target, the effective distance between the radar source and the radar reflective target at a predetermined rate sufficiently great to create, using the incident radar signal from said synthetic aperture radar, at least two distinct Doppler signals and returning said two distinct Doppler signals to said synthetic aperture radar, each said Doppler signal being shifted in frequency from the frequency of the incident radar signal, whereby said synthetic aperture radar receives false information of the target; and
    returning said Doppler signals to said synthetic aperture radar.

    1. 2.1

      For the apparatus, you’ll have to see if they’ve described any particular shields for their claimed “shield means” any particular modulator for their claimed “modulation means”, etc.

      If they have, then given the current treatment of means-for claiming, they’re relatively limited, of course.

      If they have not, then arguably they’re just claiming the concepts of smearing by shielding/modulating and duping the echoes and the like.

      But I don’t see how the mentioned method claim makes the apparatus claim abstract.

      1. 2.1.1

        “But I don’t see how the mentioned method claim makes the apparatus claim abstract.”

        Have another read through Alice.

  6. 1

    Can you tell where the secret inventions were invented? What percentage from around Groom Lake Nevada, for instance?

    1. 1.1

      Speaking of creepy secret government stuff related to Groom Lake:

      Every area of restricted airspace in the US is listed on the FAA’s Special Use Airspace order. All of these entries include a “controlling agency”, which is an FAA facility (e.g., an Air Force base or air traffic control center) which can issue (or decline to issue) authorizations to pilots to enter the restricted airspace.

      Except one.


          I was being overly dramatic for effect, and it looks like there are maybe a few more in there that no longer have joint control with an FAA facility that weren’t like that before. But R-4808N covers Groom Lake, and from what I understand, there is no way to contact anyone by radio to make an in-flight request for entry into that airspace. It might as well be prohibited airspace (like over the White House), except for the personnel flights directly between the Groom Lake facility and McCarran (how’s that for a daily commute?).

          As for Clear, Alaska, that’s probably related to early warning radar for World War 3, and given the general lack of aviation facilities in central Alaska, it’s perhaps unsurprising that it’s not joint-use.

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