The company I work for does small research contracts for the Dept. of Defense. As part of a contract we have with the Air Force, we have developed some security measures for circuit boards. The company owner would like to get a patent on these measures with the intent of producing and selling a product or service (which is encouraged by the DoD in general). However, according to some Air Force documentation we have received, some of the measures may need to be classified (Secret). Since I understand that patents are made public, can we patent something that is classified? For some reason the boss doesn’t seem to think this will be a problem and our Air Force contact is not very experienced with this sort of thing.
To summaraize:
Are all the details of all (US) patents made public?
Can classified technologies be patented? If not, how are they protected?
Apparently it’s possible:link discussing NASA contractors filing patents on classified information.
My initial reaction was that it was impossible to enforce a patent on classified material as a practical matter, but I suppose such things are handled under seal.
If you are planning on pursuing a patent, you will likely employ the services of a patent agent or lawyer. There must be one somewhere with familiarity with classified patents. Y’all should be able to find someone in your neck of the woods with the kind of experience you need.
Stupid board timed me out after I wrote a response. Trying again,
Are all the details of all (US) patents made public?
During prosecution, the patent application and details are kept confidential. Only the application, owner or agent can give authorization to release information, unless it is a status report and only under certain circumstances (See 37. CFR 1.14). So, basically, the answer here is that before the patent issued, the details are kept confidential. After the patent is granted, however, the final patent is published and freely available to the public. The prosecution history and certain documents are also available for inspection and copying from the USPTO.
**Can classified technologies be patented? If not, how are they protected? **
Once an application is filed, the USPTO is supposed to screen each application for material that could impact national security. I presume this would cover “classified information”. The application is then sent to one of 3 agencies: DoE, NASA, and the Armed Services Patent Advisory Board, whichever is more appropriate.* (In your case, probably the ASPAB; I’ve always been surprised that the DOD isn’t one of the 2 agencies.) If the agency tells the PTO that the application does cover technology that affects national security, a Secrecy Order is issued and a patent won’t be granted until it no longer affects national security.
As for how to protect the information w/o a patent, there may be other venues of IP protection like trade secret or copyright laws that could apply. Of course, you’d still have to worry about things like ITAR and Export Control Regulations, but that’s a whole nudder ball of wax.
This is the way it’s supposed to work, but reality says that at least with one of the agencies, it doesn’t quite work that way. They just ignore those files.
(Not legal advice, see your own patent lawyer, blah blah blah)