What kinds of USPTO communications are secure and not secure?

When I was first in practice, a long time ago, the only ways to communicate with a patent examiner at the USPTO were:

• • postal mail (and couriers)
  • telephone calls
  • fax
  • hand-carry.

The USPTO’s policy, to the extent that such a thing had been thought about at all, was that all of these kinds of communication were sufficiently secure as to satisfy national security requirements.  You might file a patent application the contents of which were so sensitive that a foreign filing licence would not be granted, and it was okay that the way you sent it to the USPTO was by postal service.

But what kinds of communication are actually secure? As I discuss below, the USPTO has this kind of thing absolutely backwards. What USPTO thinks is secure is not secure, and vice versa.

Now, in 2026, if you want an Examiner to be able to send you an email instead of calling you on the phone, USPTO policy says you will need to file Form PTO/SB/439.  This form embodies the USPTO’s (mistaken) view that email is less secure than telephone calls.

The reality is that the thing that is less secure is telephone calls.  The Salt Typhoon stuff reminds us that a foreign adversary can eavesdrop on telephone calls, text messages, and faxes.  And some do not appreciate is that a traditional landline telephone connection (which might be used for a voice call or a fax) is ridiculously easy to tap in ways that the telephone customer would never be able to detect.

In contrast, in 2026, nearly all email messages are encrypted over most of their travel.  SSL encryption is the default in 2026 for the connection between the email user and the email service provider.  Most email service providers use encryption for their email forwarding to other email service providers.  Yes, there is still an eavesdropping opportunity within any particular email service provider.  But as between email and telephone calls, it is the telephone calls that are less secure.

And any two email correspondents who wish to be completely secure can do it.  It is a matter of a few mouse clicks to set up end-to-end encryption for email, using either of two approaches called S/MIME and OpenPGP.  (Dear reader, if you would like to learn how to do this, drop me a note and we can set up end-to-end email encryption.)

Yet if you want an Examiner to be willing to receive an email from you, or send you an email, you will need to file Form PTO/SB/439.