[Code of Federal Regulations]
[Title 32, Volume 1, Parts 1 to 190]
[Revised as of July 1, 1998]
From the U.S. Government Printing Office via GPO Access
[CITE: 32CFR159a.20]

[Page 811]
 
                       TITLE 32--NATIONAL DEFENSE
 
              CHAPTER I--OFFICE OF THE SECRETARY OF DEFENSE
 
PART 159a--INFORMATION SECURITY PROGRAM REGULATION--Table of Contents
 
                        Subpart C--Classification
 
Sec. 159a.20  Information developed by private sources.

    (a) General. There are some circumstances in which information not 
meeting the definition in Sec. 159a.9(f) may warrant protection in the 
interest of national security.
    (b) Patent Secrecy Act. The Patent Secrecy Act of 1952 provides that 
the Secretary of Defense, among others, may determine that disclosure of 
an invention by granting of a patent would be detrimental to national 
security. See DoD Directive 5535.2 \8\. A patent application on which a 
secrecy order has been imposed shall be handled as follows within the 
Department of Defense:
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    \8\ See footnote 1 to Sec. 159a.3.
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    (1) If the patent application contains information that warrants 
classification, it shall be assigned a classification and be marked and 
safeguarded accordingly.
    (2) If the patent application does not contain information that 
warrants classification, the following procedures shall be followed:
    (i) A cover sheet (or cover letter for transmittal) shall be placed 
on the application with substantially the following language:

    The attached material contains information on which secrecy orders 
have been issued by the U.S. Patent Office after determination that 
disclosure would be detrimental to national security (Patent Secrecy Act 
of 1952, 35 U.S.C. 181-188). Its transmission or revelation in any 
manner to an unauthorized person is prohibited by law. Handle as though 
classified CONFIDENTIAL (or such other classification as would have been 
assigned had the patent application been within the definition provided 
in Sec. 159a.9(f)).

    (ii) The information shall be withheld from public release; its 
dissemination within the Department of Defense shall be controlled; the 
applicant shall be instructed not to disclose it to any unauthorized 
person; and the patent application (or other document incorporating the 
protected information) shall be safeguarded in the manner prescribed for 
equivalent classified material.
    (3) If filing of a patent application with a foreign government is 
approved under provisions of the Patent Secrecy Act of 1952 and 
agreements on interchange of patent information for defense purposes, 
the copies of the patent application prepared for foreign registration 
(but only those copies) shall be marked at the bottom of each page as 
follows:

    Withheld under the Patent Secrecy Act of 1952 (35 U.S.C. 181-188). 
Handle as CONFIDENTIAL (or such other level as has been determined).

    (c) Independent Research and Development. (1) Information in a 
document or material that is a product of government-sponsored 
independent research and development conducted without access to 
classified information may not be classified unless the government first 
acquires a proprietary interest in such product.
    (2) If no prior access was given but the person or company 
conducting the independent research or development believes that 
protection may be warranted in the interest of national security, the 
person or company should safeguard the information in accordance with 
Sec. 159a.19 and submit it to an appropriate DoD element for evaluation. 
The DoD element receiving such a request for evaluation shall make or 
obtain a determination whether a classification would be assigned if it 
were government information. If the determination is negative, the 
originator shall be advised that the information is unclassified. If the 
determination is affirmative, the DoD element shall make or obtain a 
determination whether a proprietary interest in the research and 
development will be acquired. If so, the information shall be assigned 
proper classification. If not, the originator shall be informed that 
there is no basis for classification and the tentative classification 
shall be canceled.
    (d) Other Private Information. The procedure specified in 
Sec. 159a.19 shall apply in any case not specified in paragraph (c) of 
this section, such as an unsolicited contract bid, in which private 
information is submitted to a DoD element for a determination of 
classification.