Invention Secrecy Act: Orders, Duration, and Penalties

The Invention Secrecy Act of 1951 lets the federal government block a U.S. patent application from being published, and withhold the patent itself, when the underlying technology could harm national security. The law applies to any invention made in the United States, imposes a gag order on the inventor, and can be renewed year after year for as long as an agency keeps certifying the need. It also gives affected inventors a right to compensation and creates criminal penalties, patent forfeiture, and invalidity risks for anyone who breaks the rules. At the end of fiscal year 2025, 6,543 secrecy orders were in effect, and 102 new ones were imposed that year.¹

How an Application Ends Up Under a Secrecy Order

Every application filed with the U.S. Patent and Trademark Office is screened for national security implications. When an examiner sees subject matter with possible defense or intelligence uses, the USPTO refers the application to designated reviewers, usually before the inventor hears anything.²

The reviewing agencies include the Department of Defense, the Department of Energy, and any other agency the President has designated as a defense agency.³ The legal threshold is whether publishing the invention would be “detrimental to the national security” in the opinion of the reviewing agency head. The statute does not require proof of certain harm; the agency head’s judgment is enough. Once that determination is made, the Commissioner of Patents orders the invention kept secret and withholds the patent “for such period as the national interest requires.” The inventor gets notice of the order, but not the reasoning behind it.

The Three Types of Secrecy Orders

Restrictions vary by order type. The USPTO tailors the level of control to the sensitivity of the technology and to the inventor’s existing security relationships.⁴

Type I is a Permit for Foreign Filing in Certain Countries. It covers unclassified applications containing critical technology with military or space applications and is the least restrictive of the three. It identifies specific allied countries where a corresponding application may be filed and spells out which export control regulations apply to the technical data.⁵
Type II is a Permit for Disclosing Classified Information. It applies when the application’s data is classified or classifiable and the inventor already holds a Department of Defense security agreement. The technical data is handled the same way any other classified material would be, and the order notifies the inventor of the classification level.
Type III is the General Secrecy Order, used when neither of the others fits. The inventor cannot disclose the subject matter to anyone without express written consent from the Commissioner for Patents. This is the category that applies when the inventor lacks a DoD security agreement or when an agency outside the Department of Defense requested the order.

How Long a Secrecy Order Lasts

An order cannot run more than one year at a time. At the end of each year, the head of the requesting agency must make a fresh determination that secrecy is still required; if so, the Commissioner renews the order for another year. That cycle can repeat indefinitely.³

Two situations extend the term automatically. An order in effect during wartime remains active for the duration of hostilities plus one year. An order in effect during a presidentially declared national emergency runs through the emergency plus six months. In practice, many orders have been renewed for years or decades. Of the 6,543 orders active at the end of FY 2025, only 30 were rescinded that year.¹

The Foreign Filing License Rule

A companion rule in the Act catches many inventors who never come near a secrecy order. Under 35 U.S.C. § 184, anyone who invents something in the United States must wait at least six months after filing a U.S. patent application before filing in any foreign country, unless the Commissioner of Patents first grants a foreign filing license.⁶ For ordinary applications the USPTO issues these licenses routinely, often within weeks.

When the invention is already under a secrecy order, a foreign filing license cannot be granted without the concurrence of the agency head who requested the order. In most cases that means denial for the life of the order. A retroactive license is available when a foreign filing was made “through error” and the application does not disclose subject matter within § 181, but the exception is narrow.

The stakes are high. Under 35 U.S.C. § 185, any U.S. patent obtained after an unauthorized foreign filing is invalid, and the applicant is barred from receiving a U.S. patent in the first place. The only defense is proving the failure to obtain a license was an honest mistake and that the patent does not cover national-security-sensitive subject matter.⁷ The requirement applies even when the invention has nothing to do with national security, which is where many inventors lose their rights permanently.

Petitioning to Rescind or Modify an Order

An inventor under a secrecy order can push back. Any affected principal can file a petition to rescind the order under 37 CFR 5.4. The petition can be a letter, filed in duplicate, but it has to state specific grounds.⁸

The most common ground is that the order has become ineffective because the same technology has already been published or patented by someone else. A petition on that basis must provide complete data on the prior publications or patents, include copies, and identify any government contract related to the invention’s development or state that none exists. If the petition is denied, the inventor can appeal to the Secretary of Commerce, but only after a formal denial, and the appeal must be filed within 60 days.

Short of full rescission, 37 CFR 5.5 allows a petition for a permit to disclose the invention to specific people or to file in specific foreign countries. The petition must explain the purpose of the disclosure, identify the countries and recipients, and vouch for their loyalty and integrity; if recipients hold security clearances, those details go in the petition.⁹

Compensation for Inventors Whose Patents Are Withheld

An inventor whose patent is withheld has a statutory right under 35 U.S.C. § 183 to seek compensation for two things: the damage caused by the secrecy itself, such as lost licensing revenue and missed commercial opportunities, and any government use of the invention during the restricted period. The right also runs to successors, assignees, and legal representatives.¹⁰

The compensation window opens on the date the inventor is notified that the application would otherwise be in condition for allowance, meaning it would have been granted but for the secrecy order. It closes six years after the patent is eventually issued. The claim is directed to the head of the agency that caused the order. If the Department of Defense requested it, the claim goes to the Secretary of Defense.

The agency head can negotiate a full settlement, which is conclusive and final. If a full settlement is not reached, the agency head may award up to 75 percent of what they consider just compensation. The inventor can accept that partial payment and then sue in the United States Court of Federal Claims, or in the federal district court where they reside, for an amount that together with the agency award constitutes full just compensation. A patent owner who never filed an administrative claim during the secrecy period can still sue in the Court of Federal Claims after the patent issues, though that route skips any chance of an agency settlement.

Penalties for Violating a Secrecy Order

Breaking a secrecy order carries civil and criminal consequences that can compound and wipe out the inventor’s rights.

Abandonment and Forfeiture

Under 35 U.S.C. § 182, if the Commissioner of Patents establishes that an inventor published or disclosed the invention in violation of a secrecy order, or filed a foreign application without authorization, the invention may be held abandoned. The abandonment relates back to the time of the violation, not the date the government discovers it. A finding of abandonment also forfeits all claims against the United States based on that invention, so the inventor loses both the patent and the right to compensation.¹¹

Criminal Penalties

Willful violations are criminal under 35 U.S.C. § 186. Knowingly publishing or disclosing an invention under a secrecy order, or filing a foreign application without authorization under § 184, is punishable by a fine of up to $10,000, up to two years in prison, or both.¹² The statute requires that the person acted “willfully,” which means the government must prove the person knew about the order and acted without authorization; an accidental disclosure by someone unaware of the order would not meet that standard.

Patent Invalidity

Filing abroad without a required license under § 184 also bars the applicant from ever obtaining a U.S. patent on the invention, and invalidates the patent if one has already issued. The only escape is proving the failure to obtain a license was through error and that the patent does not cover subject matter within § 181.⁷

The Scale of Invention Secrecy Today

The Act is not a relic. With 102 new orders imposed in FY 2025 against 30 rescissions, the total keeps climbing.¹ Because orders renew annually and agencies routinely certify the continued need, many of the 6,543 active orders have been in place for years or decades. The affected inventions span fields from cryptography and weapons systems to energy technology and materials science, but the government does not publicly disclose which specific technologies are under order.

1
Federation of American Scientists. Invention Secrecy Activity
2
Defense Technology Security Administration. Patent Security Reviews
3
Office of the Law Revision Counsel. 35 USC 181
4
United States Patent and Trademark Office. MPEP §120
5
Federation of American Scientists. Administration of the Invention Secrecy Act
6
Office of the Law Revision Counsel. 35 USC 184
7
Office of the Law Revision Counsel. 35 USC 185
8
eCFR. 37 CFR 5.4
9
eCFR. 37 CFR 5.5
10
Office of the Law Revision Counsel. 35 USC 183
11
Office of the Law Revision Counsel. 35 USC 182
12
Office of the Law Revision Counsel. 35 USC 186