The National Secrecy Act governs situations where the government's granting of a patent is deemed detrimental to national security.

In some cases, the Commissioner may decide that the disclosure or publication of an invention whose patent application is under review is detrimental to national security. When the disclosure or publication of an invention whose patent application is under review is deemed by the U.S. government, or any of its agencies, to be detrimental to national security, the Commissioner orders the invention to be kept secret, and withhold the grant of patent status.

In such cases, the Commissioner sends inventions to the Secretary of Defense, the Atomic Energy Commission, and the chief officers of various other designated defense agencies or departments in the U.S. for inspection. Each individual that receives the disclosure of these inventions signs dated acknowledgments. The acknowledgments are then entered into the application's file.

Secrecy Order

If the Secretary of the Defense Department, the Atomic Energy Commission, or chief officers of other defense agencies and departments deem the disclosure or publication of the invention under review to be detrimental to national security, these agencies notify the Commissioner to keep the invention secret and withhold the granting of the patent for an appropriate length of time required by national interests.

After being presented with evidence by the head of the defense agency or department that issued the secrecy order stating that the patent application is detrimental to national interests, the Commissioner keeps such applications under seal and notifies applicants.

Right to Appeal

Owners of patent applications that have been placed under secrecy orders have the right to appeal the orders to the Secretary of Commerce under prescribed rules.

The granting of this kind of patent and a rescission of the secrecy order cannot be withheld for a period exceeding one year.

Renewal

The Commissioner can renew the secrecy order at the end of the renewal period for additional one-year periods. This renewal is contingent upon notification by the agency or department that issued the secrecy order in the first place. If the agency or department determines that the invention is still detrimental to national security at the end of the renewal period, the Commissioner can renew the secrecy order for one year.

If the order has been issued or is in effect during a period when the country is at war, it remains in effect for the duration of hostilities and an additional one year following the end of hostilities.

Rescission

If the order has been issued or is in effect during times of national emergencies declared by the President, it remains in effect during the duration of the national emergency and the six months following.

After notification is given by the chief officer of the agency or head of the department that issued the secrecy order that the disclosure or publication of the invention is no longer detrimental to national security, the Commissioner can rescind the secrecy order.

Abandonment

Inventions in a patent application that is subject to a secrecy order may be abandoned if the Commissioner establishes that the invention was disclosed or published in violation of the secrecy order. This rule also applies in cases where the applicant, their assigns, successors, or legal representatives file a provisional patent application in a foreign country without the Commissioner's consent. Abandonment occurs at the time of violation.

The Commissioner does not give consent without the agreement of the chief officer of the agency or head of the department that issued the secrecy order.

Abandonment entails a forfeiture to all claims against the U.S. government on the basis of invention by the applicant and their:

  • Assigns.
  • Successors.
  • Legal representatives.

An applicant, their assigns, successor, or legal representatives whose patent application has been withheld has the right to apply to the chief officer of the agency or head of the department that issued the secrecy order for compensation for damages related to the secrecy order or the government's use of the invention. The right to compensate for use begins on the date of the government's first use of the invention.

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