2306 Secrecy Order Cases [R-08.2017]
37 CFR 5.3 Prosecution of application under secrecy orders; withholding patent.
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- (b) An interference will not be declared involving a national application under secrecy order. An applicant whose application is under secrecy order may suggest an interference (§ 41.202(a) of this title), but the Office will not act on the request while the application remains under a secrecy order.
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Once an interference is declared, an opposing party is entitled to access to the application and benefit applications pursuant to 37 CFR 41.109. See MPEP § 2307.02. Consequently, an interference should not be suggested for an application under a secrecy order. See MPEP §§ 120 and 130. When a secrecy order expires or is rescinded, if the examination is otherwise completed in accordance with 37 CFR 41.102, then the need for an interference may be reconsidered.
If an application not under a secrecy order has allowable claims that interfere with allowable claims of an application that is under a secrecy order, then the application that is not under the secrecy order should be passed to issue as a patent. An interference may be suggested with the application and the patent (unless the patent has expired) once the secrecy order has been lifted.
Example
Application L discloses and claims a transistor that is useful in a commercial context. Application M discloses the same transistor in the context of a missile control circuit, but claims only the transistor. A secrecy order is placed on application M. Once examination of application L is completed and the transistor claim is allowable, application L should pass to issue.
