A LETTER ABOUT PATENTS AND CLASSIFICATION, FROM DR. BRIAN DODSON AT PATENTWORLD
[email] as sent to Pat Bailey, President of INE
Did a little checking around, partially with an ex-Examiner I work with.
It is true - all patent applications go thru a security scan. The way it works is that the various agencies identify 'sensitive' areas, and the Patent Office splits them out to be forwarded to appropriate designated classifiers. For example, an application on radar may go to an Air Force classifier, whereas a cryptography application goes to the NSA. The criterion is, roughly, "If we'd classify it going out of here, it gets chosen for a Security Order".
When you boil it down, it's still a keyword-based system, and, as such, is pretty easy to avoid getting trapped inadvertently.
The problem with the idea of filing foreign first is that, if the invention is invented in the US, it is illegal to file for a foreign patent without getting a Foreign Filing License from the PTO. (Unless months have passed from the time a US application is filed.)
It is perfectly OK to publish the details of an invention in another country before filing US. But what that does is eliminate any chance of getting any foreign patent (foreign patents will be barred by the publication), and the USPTO will still issue a Secrecy Order, even if the material is public. (This is like Gov't classification of information that has already been published in Popular Science.) The feeling is that confirmation of the information by the Gov't makes the info more real, so they often refuse to do that, even though it can make them look silly.
Laws are like this. If you try to power your way through in terms of formulae and rights, you get nowhere, because that's the easy stuff for the legislators to think about. Finesse, tho... if no security flags are raised, that's not the inventor's responsibility.
Dr. Brian Dodson
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Mar. 17, 1997.