FAR 52.227-10—Filing of Patent Applications-Classified Subject Matter.
Plain-English Summary
FAR 52.227-10 addresses how contractors must handle patent applications that disclose classified subject matter, including subject matter classified Secret, Confidential, or otherwise protected for security reasons. It explains when a contractor must submit a proposed U.S. patent application to the Contracting Officer, when the Government may impose secrecy or delay under the patent secrecy statutes (35 U.S.C. 181-188) or related regulations, and how the 30-day review period works for Secret-or-higher material. It also covers the special rule for Confidential material, the prohibition on filing foreign patent applications without written approval when the contract subject matter is classified, and the contractor’s duty to follow security rules when transmitting applications. In addition, the clause requires the contractor to notify the Contracting Officer of filing details such as serial number, filing date, and country, and to identify the contract(s) by agency and number when sending the application to the U.S. Patent Office. Finally, it requires flowdown of the clause to subcontracts that cover or are likely to cover classified subject matter. In practice, this clause is meant to protect national security while preserving the contractor’s right to seek patent protection, and it creates a controlled process for coordinating patent filings with security review.
Key Rules
Secret-or-higher applications reviewed first
Before filing a U.S. patent application that discloses subject matter classified Secret or higher, the contractor must send the proposed application to the Contracting Officer and cite the 30-day provision. The Government then decides whether secrecy, sealing, or patent delay is needed for national security reasons.
Thirty-day filing safeguard
The contractor must follow any instructions from the Contracting Officer on how to deliver the application to the Patent Office, but the contractor cannot be denied the right to file. If no instructions are given within 30 days after mailing or other transmittal, the contractor may file the application.
Confidential applications require submission
Before filing a U.S. patent application that discloses Confidential subject matter, the contractor must furnish a copy to the Contracting Officer so the Government can determine whether secrecy or patent delay is required. This paragraph does not state the same 30-day filing rule as paragraph (a), so the contractor must wait for the Government’s determination process to run its course.
Foreign filings need written approval
If the contract subject matter is classified for security reasons, the contractor may not file a patent application or registration in any country other than the United States without first obtaining written approval from the Contracting Officer. This is a strict prior-approval requirement for foreign patent activity.
Security rules govern transmission
When filing any application covered by the clause, the contractor must comply with all applicable security regulations for transmitting classified subject matter. The contractor must also promptly provide the Contracting Officer the serial number, filing date, and country of any such application.
Contract identification must accompany filing
When sending the application to the U.S. Patent Office, the contractor must use a separate letter identifying by agency and number the contract or contracts that require security classification markings on the application. This helps the Patent Office and the Government connect the filing to the correct classified contract work.
Flowdown to covered subcontracts
The contractor must include the substance of the clause, including paragraph (e), in all subcontracts that cover or are likely to cover classified subject matter. This ensures subcontractors are bound by the same security and filing controls.
Responsibilities
Contracting Officer
Review proposed patent applications disclosing classified subject matter, determine whether secrecy orders, sealing, or patent delay are needed, and provide instructions on how the contractor should deliver the application to the U.S. Patent Office. The Contracting Officer must also approve any foreign filing in writing when required by the clause.
Contractor
Submit proposed U.S. patent applications for Secret-or-higher subject matter before filing, furnish Confidential applications for Government review, follow all security transmission rules, provide filing details after submission, identify the relevant contract(s) in a separate letter to the Patent Office, and obtain written approval before any foreign filing involving classified subject matter. The contractor must also flow the clause down to applicable subcontracts.
Government
Determine whether classified patent applications should be placed under an order of secrecy, sealed under 35 U.S.C. 181-188, or otherwise delayed for national security reasons. The Government’s role is to protect classified information while allowing patent processing to proceed under controlled conditions.
Subcontractors
Comply with the same classified patent application restrictions when their work covers or is likely to cover classified subject matter, because the prime contractor must include the substance of this clause in the subcontract.
U.S. Patent Office / USPTO
Receive patent applications through the controlled process described by the clause and process them subject to any secrecy order, sealing, or delay requirements imposed under applicable law and Government instructions.
Practical Implications
Contractors must screen inventions early for classified content before any patent filing decision is made; once a filing is prepared, the security review process can affect timing and how the application is transmitted.
The 30-day rule in paragraph (a) is important for Secret-or-higher material: if the Contracting Officer does not respond within 30 days after transmittal, the contractor may file, but it still must follow any security instructions received before then.
Foreign patent filings are tightly restricted. A contractor cannot assume it may file abroad just because it can file in the United States; written approval is required whenever the contract subject matter is classified for security reasons.
A common pitfall is failing to coordinate patent counsel, security personnel, and the Contracting Officer early enough. Missing the required contract identification letter, filing details, or security transmission procedures can create compliance problems even if the invention is otherwise patentable.
Prime contractors should make sure subcontract clauses are flowed down whenever classified subject matter may be involved, because subcontractor noncompliance can create security and contractual exposure for the prime.
Official Regulatory Text
As prescribed at 27.203-2 , insert the following clause: Filing of Patent Applications-Classified Subject Matter (Dec 2007) (a) Before filing or causing to be filed a patent application in the United States disclosing any subject matter of this contract classified "Secret" or higher, the Contractor shall, citing the 30-day provision below, transmit the proposed application to the Contracting Officer. The Government shall determine whether, for reasons of national security, the application should be placed under an order of secrecy, sealed in accordance with the provision of 35 U.S.C. 181 - 188 , or the issuance of a patent otherwise delayed under pertinent United States statutes or regulations. The Contractor shall observe any instructions of the Contracting Officer regarding the manner of delivery of the patent application to the United States Patent Office, but the Contractor shall not be denied the right to file the application. If the Contracting Officer shall not have given any such instructions within 30 days from the date of mailing or other transmittal of the proposed application, the Contractor may file the application. (b) Before filing a patent application in the United States disclosing any subject matter of this contract classified "Confidential," the Contractor shall furnish to the Contracting Officer a copy of the application for Government determination whether, for reasons of national security, the application should be placed under an order of secrecy or the issuance of a patent should be otherwise delayed under pertinent United States statutes or regulations. (c) Where the subject matter of this contract is classified for reasons of security, the Contractor shall not file, or cause to be filed, in any country other than in the United States as provided in paragraphs (a) and (b) of this clause, an application or registration for a patent containing any of the subject matter of this contract without first obtaining written approval of the Contracting Officer. (d) When filing any patent application coming within the scope of this clause, the Contractor shall observe all applicable security regulations covering the transmission of classified subject matter and shall promptly furnish to the Contracting Officer the serial number, filing date, and name of the country of any such application. When transmitting the application to the United States Patent Office, the Contractor shall by separate letter identify by agency and number the contract or contracts that require security classification markings to be placed on the application. (e) The Contractor shall include the substance of this clause, including this paragraph (e), in all subcontracts that cover or are likely to cover classified subject matter. (End of clause)