A January 20, 2025 executive order from President Trump says, in part:
Agency Heads shall take all necessary steps, in coordination with the [administrator of DOGE] and to the maximum extent consistent with law, to ensure [DOGE] has full and prompt access to all unclassified agency records, software systems, and IT systems.
“Agency” is defined in a way that includes the USPTO.
So apparently the Department of Government Efficiency has, or will soon have, full access to all unclassified USPTO records, all USPTO unclassified USPTO software systems, and all USPTO unclassified IT systems.
Are unpublished patent applications “classified”?
I don’t know the answer. But what popped into my head just now is that this development with DOGE might mean yet another factor to take into account when considering whether to file one’s PCT application in RO/US or RO/IB.
No.
“to the maximum extent consistent with law”
Seems to me 35 USC 122(a) is relevant in that regard.
“(a) CONFIDENTIALITY.— Except as provided in subsection (b), applications for patents shall be kept in confidence by the Patent and Trademark Office and no information concerning the same given without authority of the applicant or owner unless necessary to carry out the provisions of an Act of Congress or in such special circumstances as may be determined by the Director.”
An EO is not an Act of Congress. Has the new director determined that an EO creates special circumstances that allow for waiver of confidentiality?
So – it would seem that patent applications are NOT “classified” under the definition here. They are “confidential”, but not classified, and therefore, DOGE would, I believe, have access to such applications.
Once again, why do unelected individuals who are beholden to no one other than themselves, have access to America’s most important IT systems and records, including confidential information such as patent applications, and personal information on all Americans?
As a passive onlooker filing applications in the UK & Europe, this latest development appears really bad and suspect to me.
Still, as Carl says once you have overcome the US requirement for a “Foreign Filing Licence”, it does make filing PCT applications via the International Bureau much more attractive!
Awesome.
What could possibly go wrong?
So, potentially now Musk (CEO of Tesla among other things, last I checked) has access to unpublished applications filed by competitors. I can’t imagine anyone in the automobile industry or any other industry he’s in is OK with this.
It’s the USA. Nobody takes the USA seriously anymore.
Whenever someone asserts the USA is not serious, it always brings to mind the Richards’ quote on Europe –
A continent of corpses lacking even the good sense to lay down and die.