Invention secrecy

This table overviews the national security review process, including how long it takes and the average number of applications flagged and cleared for processing at each level of review each fiscal year (FY).

Length and volume of reviews (approximate)

See infographic [PDF]

Applications "Waiting for LR clearance" have been referred to at least one defense agency for security review and L&R is waiting on a reply. In these cases, we will not allow the application to be transmitted abroad by the USPTO until we receive an answer from each defense agency to which the application was referred.

Call L&R at 571-272-8203 to request a status update. If you need to meet a foreign filing deadline or the application has been under review more than five months, we can contact the defense agency to expedite a reply.

If your application is placed under a secrecy order, notify L&R immediately about any related applications that are scheduled for publication by the International Bureau, a foreign IP office, or the USPTO. A secrecy order applies to the “invention disclosed in an application for patent,” which encompasses the entirety of the subject matter, not just the disclosure in the application.

Every application filed is treated independently. Sometimes it is unclear from the USPTO’s record whether an application under secrecy order is related to another application pending in the USPTO or another IP office. 

If your application is placed under a secrecy order under 35 U.S.C. 181, notify L&R that a related application is also pending at the USPTO, so that L&R can consult the defense agencies regarding any national applications related to the application under secrecy order (find more information in 37 CFR 5.2). Also notify L&R of any international or foreign applications related to the application. Most importantly, if you know about the secrecy order and without authorization cause disclosure of the invention, you may be subject to the penalties under 35 U.S.C. 186.

Whether working in the United States or outside, U.S. nationals should exercise caution when sharing technical information, hardware, or a service with foreign nationals during the invention process. Regardless of either party's location, releasing certain technical information or hardware or providing a service to foreign nationals may require a license or other authorization from one of various U.S. export control authorities. Factors determining whether an export license or other authorization is required include the

• Export jurisdiction of the technology
• Hardware or service involved
• Sensitivity of the technology, hardware, or service
• Nationality of the individual receiving the information, hardware, or service
• End use and end user of the information

This caution applies regardless of whether or not the invention is “made in this country” as legally defined. Before collaborating with foreign nationals at any invention stage, U.S. nationals with questions about requiring prior U.S. government authorization are advised to contact one of the export licensing authorities listed on this page, including the departments of Commerce and State, to determine the export status.

What is a foreign filing license?

A foreign filing license from the Commissioner for Patents authorizes the export of technical data and other subject matter to prepare, file, and prosecute a foreign patent application, as well as to use the World Intellectual Property Organization (WIPO) online service to prepare an international application for filing with the USPTO (acting as a receiving office).

This license also exempts information shared only for those purposes from requiring separate compliance with certain export regulations administered by the departments of State, Commerce, and Energy. Below is a list of export authorities that should be contacted about exports for purposes other than those that may be covered by a foreign filing license:

However, a foreign filing license granted by the USPTO does not authorize export of invention materials to prepare an application for first filing in the United States. For example, even with a foreign filing license, you cannot hire patent professionals abroad to prepare your patent application for an invention made in the U.S. for a first filing in the U.S. Also note that if you filed your U.S. application six or more months ago and a secrecy order has not been imposed, you don’t need an explicit license to file a corresponding application in a foreign country.

See flowchart [PDF]

You can obtain a foreign filing license by either filing an application with the USPTO and receiving an official filing receipt indicating that the foreign filing license has been granted, or separately petitioning the USPTO for an expedited foreign filing license. See the relevant CFR sections for more information.

If an international application filed under the Patent Cooperation Treaty (PCT) in the United States Receiving Office does not include a petition or request for a foreign filing license, and it is clear that a license is required because of the designation of foreign countries and the timing of the required transmission of the record copy, current agency practice assumes the filing to include a request for a foreign filing license. 

Generally, a petition for foreign filing license will be granted, if there is no national security concern, within three business days from receipt of the petition in L&R.

Requesting an expedited foreign filing license

A petition for an expedited foreign filing license can be mailed, faxed, or hand-delivered to L&R, whether the requested license is related to a pending patent application or not. Requests related to an existing application can also be filed through Patent Center. If you filed a foreign application without a license and the subject matter disclosed in the application is not under a secrecy order, you may request a retroactive foreign filing license.

If faxing, send to 571-270-9959. 

Hand-deliver to:

Room 4B31 
501 Dulany Street (Knox Building) 
Alexandria, Virginia 22314 

The postal mail address is: 

Mail Stop L&R 
Commissioner for Patents 
P.O. Box 1450 
Alexandria, Virginia 22313-1450

All licenses will be mailed to the appropriate correspondence address, though a courtesy copy may be faxed if requested.