121 Handling of Applications under Secrecy Order and/or Bearing National Security Markings [R-07.2022]

Applications subject to Secrecy Order will be deleted from any image file system within the USPTO, converted to paper and held with Licensing and Review. The application will be transferred to an examiner designated by Licensing and Review for examination. Under the current Executive Order for Classified National Security Information, standards are prescribed for the marking, handling, and care of official information which requires safeguarding in the interest of security.

Papers marked as prescribed in the Executive Orders and showing that such marking is applied by, or at the direction of, a government agency, are accepted in patent applications. 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. Under no circumstances can any such application, drawing, exhibit, or other paper be placed in public records, such as the patented files, until all security markings have been considered and declassified or otherwise explained. For applications filed with the Office bearing what appears to be National Security Markings, the applicant will be so notified by Licensing and Review and asked to explain the markings, remove such markings if improper, or obtain a Secrecy Order, if necessary. If markings are found improper and removed, the application may be referred to a defense agency if deemed necessary for review under the second paragraph of 35 U.S.C. 181. Any application filed directly with Licensing and Review, not bearing proper security markings or Secrecy Order will be transmitted to scanning for incorporation as an electronic file in IFW and treated as a normal application.

Authorized security markings may be placed on the patent application drawings when filed provided that such markings are outside the illustrations and that they are removed when the material is declassified. 37 CFR 1.84(v).