There’s a thread today on Carl Oppedahl’s EFS listserv about the processing of new US patent applications being delayed while a national security review takes place. Many people may not realize it, but every US patent application is reviewed to see if its publication, and dissemination outside the US, should be forbidden on national security grounds. The overwhelming majority of applications, of course, aren’t flagged; this is reflected in the filing receipt issued by the USPTO, which says, “Foreign filing license granted.”
Such review makes sense for applications originating in the USA. What has been pointed out in the discussion in the listserv is that this review is also conducted for applications that originate outside the US and then enter the national phase of PCT. Such applications, if filed at the 30 month deadline (as nearly 100% of them are), have already been published by WIPO 18 months after the priority date, i.e. a full year before national phase entry is effected in the USA. In such circumstances, what’s the point of reviewing such cases? Conducting such review in such cases is a complete and total waste of time and money. Moreover, what's the point in telling the owner of a foreign-originated application that it's ok for him to file outside the USA?
Carl posited that the USPTO conducts such review because someone at the USPTO said, “All cases will undergo review” and that no one in the USPTO wants to say that the emperor has no clothes, because (a) the USPTO itself republishes those national phase applications after filing, (b) in many instances, this will be the first English-language publication of a previously-published PCT application, and (c) no employee wants to be the guinea pig for the “it already published in a foreign language” defense if a foreign-originating application is published by the USPTO and some nitwit at DOD says, “You shouldn’t have published that”.
It appears that on this score, the ILPTO has the USPTO beat by a mile (1.61 km for you metric speakers). The ILPTO also reviews applications for national security issues, but it only reviews locally-originating applications, over which it has jurisdiction. Moreover, not only does the ILPTO not waste time reviewing national phase PCT applications, but it usually makes those applications publicly available within about two months of filing. Contrast this to the USPTO, which takes at least 18 months from national phase entry, and sometimes longer, to publish national phase applications.
Perhaps we shouldn’t be surprised by the USPTO’s wasteful behavior. This is the same country whose defense department gave us the $37 screw and the $640 plastic toilet seat (those are 1980’s numbers). Charging patent applicants for worker time to unnecessarily review already-public documents to see if they should be subject to a secrecy order just seems to be business as usual.