Invention Secrecy Act of 1951: Triggers, Duration, and Penalties

The Invention Secrecy Act of 1951 lets the federal government block a U.S. patent from being published or granted whenever disclosure of the invention would be detrimental to national security. It applies to every patent application filed with the U.S. Patent and Trademark Office, including inventions built by private individuals with no government contract and no security clearance. If your application draws a secrecy order, you cannot publish the invention, present it, discuss it with unauthorized people, or file for a patent abroad, and violating the order carries fines, prison time, and loss of the application itself.

What Triggers a Secrecy Order

The statutory test under 35 U.S.C. § 181 is whether publishing or granting the patent would be “detrimental to the national security.” Two paths lead there. When the government already has a property interest in the invention, usually through a defense contract, the relevant agency head asks the Commissioner of Patents to lock it down. When the government has no property interest, the Commissioner refers the application to the Secretary of Defense, the successor agencies to the Atomic Energy Commission, or another agency the President has designated as a defense agency. If any of those officials concludes disclosure would threaten national security, the Commissioner issues the order.¹

The second path is what catches private inventors off guard. You can build something in your own workshop, file for a patent on it, and still find your application suppressed if the technical details touch sensitive areas. Technologies that commonly draw scrutiny include advanced cryptographic systems, weapons designs, high-speed propulsion, nuclear energy, directed-energy systems, and surveillance or intelligence-gathering hardware. The reviewers focus on whether the specifics could hand a foreign adversary a military edge.

How You Find Out

Every application filed in the United States goes through a national security screening at the USPTO’s Licensing and Review office before any foreign filing license issues or the application moves forward. Provisional applications, nonprovisional applications, international PCT filings, and Hague Agreement design applications all pass through the same review.²

If the screeners flag sensitive subject matter, the USPTO refers the application to the appropriate defense agency, which evaluates it and recommends a secrecy order if warranted. The Commissioner then issues the order and withholds publication and grant for as long as the national interest requires.² All of this happens inside the government. You learn about it only after the order is already in place.

How Long an Order Lasts

A secrecy order runs for one year at a time. At the end of each year, the agency that requested it has to make a fresh determination that national security still requires secrecy, and if it does, the Commissioner renews the order for another year. That cycle can repeat indefinitely, and many orders have stayed in force for decades.¹

Two exceptions extend the clock automatically. An order in effect during a war stays active for the duration of hostilities plus one year afterward. An order issued during a presidential national emergency lasts for the duration of that emergency plus six months.¹

What You Cannot Do While the Order Is Active

Once the order arrives, the disclosure ban is absolute. You cannot publish technical details, present the work at conferences, pitch it to investors, or discuss it with anyone who lacks authorization. The application sits pending at the USPTO, unpublished and ungranted. Even if the examiner determines the invention is otherwise patentable, no patent issues until the order is lifted.

Foreign filing is separately restricted. Federal law bars anyone from filing a patent application in another country on an invention made in the United States until at least six months after the domestic filing, unless the USPTO grants a foreign filing license. While a secrecy order is in effect, no foreign filing license can issue without the concurrence of the agency that requested the order. A retroactive license is possible only if the foreign filing happened through genuine error and did not disclose the invention covered by the order.³

Export Control Is a Separate Problem

Patent restrictions and export control laws are two different regimes that can both apply to the same invention. Under the International Traffic in Arms Regulations, information covered by a secrecy order is explicitly classified as controlled “technical data.”⁴ A foreign filing license, if you eventually get one, is not an export license. Sharing the underlying technology with foreign nationals, including foreign employees working in the United States, can require separate authorization under ITAR or the Export Administration Regulations depending on whether the technology counts as a defense article or a dual-use item.

Petitioning To Rescind the Order

Anyone affected by a secrecy order can petition the USPTO to rescind or modify it at any time. The petition must be filed in duplicate and set out the facts supporting rescission. If your argument is that the technology is already public and further secrecy serves no purpose, you have to include complete information about the prior publications or patents that reveal the same subject matter, along with copies.⁵

The petition also needs to identify any government contracts related to the invention. The USPTO forwards it to the agency that requested the order, and the Commissioner decides based on that agency’s recommendation. If your petition is denied, you can appeal to the Secretary of Commerce, but only within 60 days. No appeal is available until after a petition has been filed and rejected.⁵

What Happens to Your Patent Term

A secrecy order can suppress an application for years or decades, so federal law offers a day-for-day extension. For every day a patent’s issuance is delayed because of a secrecy order, the final patent term is extended by one day.⁶ The time consumed by the order also does not count against the three-year window the USPTO normally has to issue a patent before other term adjustments apply.⁷

The extension softens the blow but does not fix it. Fifteen years under a secrecy order gets you a patent that runs the normal term plus 15 years from issuance, but by that point the technology may be obsolete and the commercial window closed. The term adjustment protects formal rights, not market opportunities.

Seeking Compensation

You can seek financial compensation for the damage a secrecy order causes under 35 U.S.C. § 183. The window opens when the USPTO notifies you that your application would otherwise be ready for allowance, and it closes six years after the patent finally issues.⁸ Miss that six-year deadline and the administrative claim is forfeited, though a separate right to sue survives.

The first step is filing a claim with the head of the agency that caused the order to issue. That official can negotiate and enter a full settlement covering both the damage from secrecy and any use the government made of the invention.⁸

If the settlement offer falls short or no agreement is reached, you can sue the United States in the U.S. Court of Federal Claims or in a federal district court where you reside. Inventors who never filed an administrative claim can still bring suit in the Court of Federal Claims after the patent issues.⁸ The hard part is proving actual damages. When you have been prohibited from disclosing the invention to anyone, showing what the market would have paid takes expert testimony, comparable licensing deals, and market analysis. Most claims struggle at this stage.

Penalties for Unauthorized Disclosure

Violating a secrecy order carries both civil and criminal consequences. On the civil side, the Commissioner of Patents can declare the application abandoned if you publish or disclose the invention, or file for a patent in a foreign country, without authorization. The statute says “may,” so abandonment is discretionary rather than automatic. If ordered, it takes effect retroactively as of the date of the violation.⁹

Abandonment does more than kill the patent. An inventor whose application is abandoned under this provision also forfeits every compensation claim against the United States based on the invention.⁹

Criminal penalties apply to anyone who knowingly and willfully publishes or discloses an invention under a secrecy order without authorization, or files a foreign patent application in violation of the foreign filing restrictions. A conviction can result in a fine of up to $10,000, up to two years in prison, or both.¹⁰

How Common Are Secrecy Orders

The Invention Secrecy Act is not a relic. At the end of fiscal year 2025, 6,543 secrecy orders were active, with 102 new orders imposed that year. Most existing orders are renewed year after year, and only a small fraction are rescinded annually. The result is a shadow patent system the public rarely sees, covering technologies from Cold War weapons designs still deemed sensitive to current work in cryptography and energy.

1
Office of the Law Revision Counsel. 35 USC 181 – Secrecy of Certain Inventions and Withholding of Patent
2
United States Patent and Trademark Office. MPEP Section 115 – Review of Applications for National Security and Property Rights Issues
3
Office of the Law Revision Counsel. 35 USC 184 – Filing of Application in Foreign Country
4
eCFR. 22 CFR Part 120 – Purpose and Definitions
5
eCFR. 37 CFR 5.4 – Petition for Rescission of Secrecy Order
6
Office of the Law Revision Counsel. 35 USC 154 – Contents and Term of Patent; Provisional Rights
7
United States Patent and Trademark Office. Patent Term Guarantee Overview
8
Office of the Law Revision Counsel. 35 USC 183 – Right to Compensation
9
Office of the Law Revision Counsel. 35 USC 182 – Abandonment of Invention for Unauthorized Disclosure
10
Office of the Law Revision Counsel. 35 USC 186 – Penalty