Patenting of military technology

Patent applications are usually published about 18 months after they are filed. This publication is part of the patenting “deal”; you tell the public how your invention works, in return for a possible monopoly right to stop competitors from using your invention. But how does this work for military inventions? Surely it’s not possible to obtain patent protection for military inventions, because everything should be kept secret? This is not the case.

What happens to a patent application filed for military technology?

The UK Intellectual Property Office (UKIPO) assesses whether publication of an invention would be prejudicial to the national security of the UK. It is therefore important that UK residents file a first application for military-related technology with the UKIPO, and not overseas. If the UKIPO does not object within six weeks of filing, then applications can be filed outside the UK. Alternatively, permission may be sought from the UKIPO to file the first patent application outside the UK.

If the UKIPO decides that the patent application should be subject to a secrecy order then no details of the patent application are published. The patent application does not appear on the patent register and the application itself is not published, for as long as the secrecy order is in effect.

This means that if the publication of your invention would not be prejudicial to the national security of the UK, then the application will be published and prosecuted as a “normal” patent application, with the possibility of obtaining a granted patent that could be enforced against competitors. Some brief searching of the publicly-available patent website Espacenet shows that many military-related inventions are filed and prosecuted as “regular” patent applications that are not subject to a secrecy order. In this connection, a search of the Espacenet database for “ammunition” yields in excess of 60,000 hits, for “howitzer” yields over 1,000 hits and for “missile” yields nearly 80,000 hits, indicating that patent protection is available for many military-related inventions.

But what happens if the invention is subject to a secrecy order?

As mentioned above, the imposition of a secrecy order stops the patent application from being published. Furthermore, the secrecy order prevents those who know of the invention from disclosing the invention to third parties, without permission from the UK Government. Breaching of a secrecy order is a serious offence. The patent application that is subject to the secrecy order is searched and examined, as a normal patent application would be, but a patent is not granted. This means that you cannot sue someone for infringement of your patent because you do not have a granted patent. But the existence of the patent application can be significant in commercial discussions with the UK Government, and it is possible to obtain money for UK Government use of your invention, under certain circumstances.

How are things different for applications that are subject to secrecy orders?

Appropriate security arrangements have to be made for holding such patent applications, and they can be onerous depending on the security classification of the patent applications. Documents are typically filed by hard-copy via mail or by hand to the UKIPO, and must be addressed to a particular part of the UKIPO. Great care must be taken to ensure that all documents are handled in an appropriate manner.

Are secrecy orders permanent?

Secrecy orders are periodically reviewed to determine whether or not the order ought to be lifted. If the secrecy order is lifted the patent application is prosecuted like any other application or a patent is granted, if the application was deemed to be in order for grant.

What happens abroad?

Many countries have a similar arrangement to that in the UK, typically that residents of a country must file the first patent application in the country of residence. Some countries will allow residents to ask for permission from the respective patent authorities to file the first patent application outside of the country of residence.

Is it possible to file applications outside the UK for inventions that are subject to a secrecy order?

It is possible to file in certain countries, with permission from the UKIPO. Those countries include NATO countries and some non-NATO countries. The filing of such applications can take a great deal of time so planning is necessary if you wish to file applications outside the UK.

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