100

OCR transcription for search; preserved printed pages are authoritative

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# Chapter 100 Secrecy and Access

101

General

102
Information as to Status of an Application
103
Right of Public to Inspect Patent Files and

Some Application Files

104
Power to Inspect Application

Disbarred Attorney Cannot Inspect

105

106
Control of Inspection by Assignee

106.01 Rights of Assignee of Part Interest

107
"Secrecy Order" Cases

107.01
"Review" of Applications for Secrecy Order

107.02 Prosecution of "Secrecy Order" Cases

108
Applications relating to Atomic Energy

109
Security Markings

## 101 General [R-35]

35 U.S.C. 122. Confidential status of applications.
Applications for patents shall be kept in confidence by
the Patent Office and no information concerning the
same given without authority of the applicant or owner
unless necessary to carry out the provisions of any Act
of Congress or in such special circumstances as may be
determined by the Commissioner.

18 U.S.C. 2071. Concealment, removal, or mutilation
generally. (a) Whoever willfully and unlawfully con-
ceals, removes, mutilates, obliterates, or destroys, or
attempts to do so, or, with intent to do so takes and
carries away any record, proceeding, map, book, paper,
document, or other thing, filed or deposited with any
clerk or officer of any court of the United States, or in
any public office, or with any judicial or publie officer
of the United States. shall be fined not more than
$2,000 or imprisoned not more than three years, or both.

(b) Whoever, having the custody of any such record,
proceeding, map, book, document, paper, or other thing,
willfully and unlawfully conceals, removes, mutilates,
obliterates, falsifies, or destroys the same, shall be
fined not more than $2,000 or imprisoned not more
than three years, or both ; and shall forfeit his office
and be disqualified from holding any office under the
United States.

Extract from Rule 14. Patent applications preserved
in secrecy. (a) Except as provided in rule 11 (b)
pending patent applications are preserved in secrecy.
No information will be given by the Office respecting
the filing by any particular person of an application for
a patent, the pendency of any particular case before it,
or the subject matter of any particular application, nor
will access be given to or copies furnished of any pend-
ing application or papers relating thereto, without
written authority in that particular application from
the applicant or his assignee or attorney or agent of

record, unless it shall be necessary to the proper con-
duct of business before the Office or as provided by
these rules.

All Patent Office employees are legally obli-
gated to preserve pending applications for pat-
ents in confidence. 35 U.S.C. 122 and 18 U.S.C.
2071 impose statutory requirements which cover
the handling of patent applications and related
documents. Suspension, removal, and even
criminal penalties may be imposed for viola-
tions of these statutes.

In order to provide prompt and orderly serv-
ice to the public, application files must be read-
ily available to authorized Patent Office em-
ployees at all times. Accordingly, in carrying or
transporting applications and related papers,
care must be exercised by Patent Office em-
ployees, especially in corridors and elevators, to
insure that applications and related papers are
always under employee surveillance and control.
Application files must not be displayed or
handled so as to permit perusal or inspection by
any unauthorized member of the public.

Interoffice mail must be sent in appropriate
envelopes.

No part of any application or paper related
thereto should be reproduced or copied except
for official purposes.

No patent application or related document
may be removed from the premises occupied by
the Patent Office, except for handling as re-
quired by the issue process, unless specifically
authorized by the Commissioner. If such author-
ization is given, the employee having custody
will be responsible for maintaining confiden-
tiality and otherwise conforming with the re-
quirements of law.

Applications must not be placed in desk draw-
ers or other locations where they might be easily
overlooked or not visible to authorized
personnel.

Whenever an application is removed from the
operating area having custody of the file, a
charge card with appropriate notations must be
properly and promptly filed.

Papers arriving within the groups must be
properly and promptly placed within the appro-
priate files. If papers are received with faulty
identification, this should be corrected at once.
If papers are received at a destination for which
they are not intended due to faulty identifica-
tion or routing, appropriate corrective action
should be taken at once to insure the prompt

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receipt thereof at the intended destination. See
§§ 508.01 and 508.03.

All Patent Office employees should bear in
mind at all times the critical importance of in-
suring the confidentiality and accessibility of
patent application files and related documents,
and in addition to the specific procedures re-
ferred to above, should take all appropriate ac-
tion to that end.

Examiners, while holding interviews with
attorneys and applicants, should be careful to
prevent exposures of files and drawings of
other applicants.

Extreme care should be taken to prevent
inadvertent disclosure of the filing date or se-
rial number of any application filed by another
party. This applies not only to Office actions
but also to notes (usually in pencil) in the
file wrapper.

Several lithographic firms in the Washing-
ton, D.C. area file bonds each year with the
Patent Office for the privilege of temporarily
withdrawing certain drawings from the Patent
Office in order that drawings may be prepared
for foreign filing.

Patent Office employees are authorized to
release drawings to representatives of these
firms provided they: (1) Have an unexpired
identification card, (2) Present an order signed
by a party of record in the application, and (3)
Leave a receipt which can be filed as a charge
card.

Normally, drawings will be returned within
three days. Any drawings which have not been
returned within five days or which are returned
in damaged condition should be reported imme-
diately to the Office of Public Services (Ext.
73236).

## 102 Information as to Status of an Application [R-39]

Status information of an application means
only the following information :

1\. that the application is abandoned, or

2\. that the application is pending, or

3\. that the application has issued as a patent
and the patent number, issue date and classifica-
tion of such patent.

### PATENTED

If an application on which status information
is requested has matured into a patent, the fact
that the application is patented and the patent
number, issue date and classification relative to
the application may be given to anyone.

PENDING OR ABANDONED, NO REFERENCE

If an application is in pending or abandoned
status and has not been referred to by number

and date in a United States or foreign patent or
printed application, status information indicat-
ing only that the application is pending or aban-
doned may be given only to Patent Office em-
ployees and parties of record such as :

(a) The applicant.

(b) The attorney or agent of record in the
application.

(c) The assignee of record in the Patent

(d) Anyone who has and furnishes written
authority from a, b, or c.

REFERENCED APPLICATION

If an application has been referred to by
number and date in a United States or foreign
patent or printed application, status informa-
tion may be given to Patent Office employees and
to anyone who furnishes the Patent Office with
a written request citing the application in ques-
tion by serial number and date of filing. The
source document (a United States or foreign
patent or printed application) must be iden-
tified in the written request by the country, num-
ber and date of such patent or application.

REFERENCED APPLICATION, SOURCE
DOCUMENT NOT PRESENTED

If a written request for status information is
presented without a copy of the source docu-
ment, Patent Office employees will check to see
that the source document and the application
in question are properly identified and that the
source document refers to the application in
question before supplying the status informa-
tion. Requests for information not accompanied
with a copy of the source document may require
the Office to obtain a copy of the source docu-
ment for verification before status information
can be supplied. This may result in some delay
before the desired status information can be
forwarded to the requester.

REFERENCED APPLICATION, SOURCE
DOCUMENT PRESENTED

If a copy of the source document is presented,
the Office will verify that the United States ap-
plication in question is cited therein. After
checking, status information may be immedi-
ately given and the source document copy may
be returned to the requester. In either case, at
the time the status information is supplied, the
person supplying the status information marks
the request "Information furnished", the date
and his name. The request is then placed in the
file wrapper or forwarded to the appropriate
area (group art unit, abandoned files, etc.) for
inclusion in the file wrapper as part of the
official record of the application. The applicant
is not consulted. See § 203.08.

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## Right of Public to Inspect Patent Files and Some Application Files [R-35]

Rule 11. Files open to the public. (a) After a
patent has been issued, the specification, drawings, and
all papers relating to the case in the file of the patent
are open to inspection by the general public, and copies
may be furnished upon paying the fee therefor. The
file of any terminated interference involving a patent,
or an application on which a patent has subsequently
issued, is similarly open to public inspection and pro-
curement of copies. See trademark rule 2.27 for trade-
mark files.

(b) Applications in which the Office has accepted a
request filed under rule 139 are open to inspection by
the general public, and copies may be furnished upon
paying the fee therefor.

Whenever a patent relies upon the filing date
of an earlier but still pending application, the
public is entitled to see the portion of the earlier
application that relates to the common subject
matter, and also what prosecution, if any, was
had in the earlier application of subject matter
claimed in the patent. The interested party
may file a petition to the Commissioner for
access to the application. (See § 1002.02(k).)

Inasmuch as the Post Office address is neces-
sary for the complete identification of the peti-
tioner, it should always be included complete
with the ZIP Code number.

The petition may be filed either with proof
of service of a copy upon the applicant, owner
or attorney of record, if known, in the applica-
tion to which access is sought. or may be filed in
duplicate, in which case the duplicate copy is
sent by the associate solicitor to the applicant,
attorney or owner of the application, who is
given a limited period, as a week or ten days,
within which to state any objection he may
have to the granting of the petition. If no
objection is raised, the petition is approved
by the associate solicitor. If there is no
objection the petitioner is permitted to see
the entire parent application. Otherwise, the
petitioner is allowed to order a copy of only
that portion of the parent application that re-
lates to the common subject matter. A separate
petition should be filed for each application to
which access is desired, or sufficient extra copies
provided so there may be one for placement in
each application file, if the petition be granted,
and one for service upon each attorney of rec-
ord, if the applicant has different attorneys in
his applications. Each petition should show
not only why access is desired, but also why
petitioner believes he is entitled to access.

The patent, interference examiner handles
all petitions for access to applications involved

in an interference or having an interference
background.

If a defensive publication, an abstract or an
abbreviature has been published, the entire ap-
plication is available to the public for inspection
and obtaining copies, see § 711.06.

Extract from Rule 14. (b) Except as provided in
rule 11(b) abandoned applications are likewise not
open to public inspection, except that if an application
referred to in a United States patent is abandoned and
is available, it may be inspected or copies obtained by
any person on written request, without notice to the
applicant. Abandoned applications may be destroyed
after twenty years from their filing date, except those
to which particular attention has been called and which
have been marked for preservation. Abandoned appli-
cations will not be returned.

(d) Selected decisions of the Board of Appeals, or
of the Commissioner, in abandoned applications not
otherwise open to public inspection (paragraph (b) of
this rule) may be published or made available for pub-
lication at the Commissioner's discretion, unless the
applicant timely presents sufficient reasons for not do-
ing so. The applicant will be notified, through the at-
torney of record in the application file, when it is pro-
posed to release such a decision and a time not less than
thirty days set for presenting any such reasons. The
fact that the subject matter of the application has not
been made public in any manner, or that the same sub-
ject matter is being prosecuted in a pending appli-
cation, will be considered sufficient reason for not re-
leasing the decision if the applicant so requests unless
the text of the decision contains no description of such
subject matter. Other reasons presented will be duly
considered.

See rule 2.27 for trademark applications.

Access to abandoned patent applications
forming a part of a streamlined continuation
application is governed by rule 14(b) and re-
quires a written request. However, such access
must be limited to those papers which were part
of the abandoned application.

Rule 14(d) authorizes publication of deci-
sions of the Board of Appeals or of the Com-
missioner, in abandoned applications, under
certain conditions.

Rule 15. Requests for identifiable records. (a) Re-
quests for records not disclosed to the public as part of
the regular informational activity of the Patent Office
and which are not otherwise dealt with in these rules
may be made by completing Form CD-244, "Application
to Inspect Department Records," and submitting this
form, in person or by mail, to the Commissioner of
Patents, Washington, D.C., 20231. A non-refundable
application fee of $2.00 must accompany each applica-
tion. Copies of Form CD-244 are available in the
Central Reference and Records Inspection Facility,
Room 2122. Department of Commerce Building. Wash-
ington, D.C .. 20230, the search room of the Patent

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Reference Branch of the Patent Office, the search
room of the Trademark Examining Operation, and
in many public information offices and field offices
of the Department of Commerce. If the requested
record is identifiable, the request will be reviewed
by the appropriate official authorized to make an
initial determination of the availability of the rec-
ord. If it is determined that the material is not to be
made available to the requesting person, said person
shall be notified in writing of that fact and the reasons
why the record will not be disclosed. If the record is
to be made available, inspection will be permitted in the
appropriate Patent Office search room. Fees for copies
of records and for searches and related services are
payable in accordance with the schedule of fees and
charges established in § 4.8 of Title 15, Code of Federal
Regulations.

(b) Any person whose application to inspect a record
has been refused may request a reconsideration of the
initial denial by completing and submitting the appro-
priate section of the Form CD-244. The request for
reconsideration should be made within 30 days of the
date of the original denial. In submitting such request
the party should include any written argument he
desires to support his belief that the record requested
should be made available. No personal appearance,
oral argument, or hearing shall be permitted. The
decision upon such request shall be made by the Com-
missioner of Patents, and shall be based upon the orig-
inal request, the denial, and any written argument
submitted by the person seeking access to the record.
The decision upon review shall be promptly made in
writing and communicated to the person seeking access.
If the decision is wholly or partly in favor of avail-
ability, the requested record to such extent shall be
made available for inspection as described in para-
graph (a) of this rule. To the extent that the decision
is adverse to the request, the reasons for the denial
shall be stated. A decision upon review completed as
provided herein shall constitute the final decision and
action of the Patent Office as to the availability of a
requested record, except as may be required by court
proceedings initiated pursuant to 5 U.S.C. 552(a) (3).
Reconsiderations resulting in final decisions as pre-
scribed herein shall be indexed and made available in
the search room of the Patent Reference Branch.

(c) Procedures applicable in the event of a subpoena.
order, or other compulsory process or demand of a court
or other authority shall be those set forth in Section 7
of Department Order 64 (32 F.R. 9734, July 4, 1967).

## 104 Power to Inspect Application [R-42]

No person but the applicant (any one of
joint applicants), applicant's legal representa-
tive, the assignee whose assignment is of record,
or the attorney, agent or associate attorney of

record will be permitted to have access to the
file of any pending application, except as pro-
vided for under rule 11(b) or under the inter-
ference rules, unless written authority from one
of the above indicated parties, identifying the
application to be inspected and the name of the
person authorized to have access, is made of
record, or upon the written order of the Com-
missioner, which will also become a part of the
record of the case.

Approval by the primary examiner of a
power to inspect is not required. The clerk of
the group to which the application is assigned
ascertains that the power is properly signed by
one of the above indicated parties, and if ac-
ceptable, enters it into the file. If the power to
inspect is unacceptable, notification of non-entry
is written by the clerk to the person who signed
the power.

When a power to inspect is received while a
file is under the jurisdiction of a service branch,
such as the Customer Services Division, the
Service Branch of the Board of Appeals, and
the Patent Issue Division, the question of per-
mission to inspect is decided by the head of
the branch who, if he approves, indicates the
approval directly on the power.

Power to inspect may be granted when a
duplicate copy of a filed power to inspect is
hand delivered. The copy with indication of
approval is placed in the file.

A "power to inspect" is, in effect, the same
as a "power to inspect and make copies."

Where an applicant relied upon his applica-
tion as a means to interfere with a competitor's
business or customers, permission to inspect
the application may be given the competitor
by the Commissioner. (Ex Parte Bonnie-B
Co. Inc .. 1923 C.D. 42: 313 O.G. 453.)

An unrestricted power to inspect given by an
applicant is, under existing practice, recog-
nized as good until and unless rescinded. The
same is true in the case of one given by the
attorney or assignee so long as such attorney
or assignee retains his connection with the
application.

Permission to inspect given by the Commis-
sioner, however. is not of a continuing nature,
since the conditions that justified the permit to
inspect when given may not obtain at a later
date.

# ACCESS TO PATENT APPLICATION AND INTERFERENCE FILES

In order to insure that access to patent ap-
plication and interference files is given only to
persons who are entitled thereto or who are spe-
cially authorized to have access under rule 14
of the Rules of Practice in Patent Cases, and to

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insure also that the file record identifies any
such specially authorized person who has been
given access to a file, the following practice will
be observed by all personnel of the Patent
Office :

1\. Access, as provided for in the Rules of
Practice, will be given on oral request to any
applicant, patentee, assignee, or attorney or
agent of record in an application or patent only
upon proof of identity or upon recognition
based on personal acquaintance.

2\. Where a power of attorney or authoriza-
tion of agent was given to a registered firm prior
to July 2, 1971, access will be given upon oral
request as in paragraph 1 above to any regis-
tered member or employee of the firm who has
signatory power for the firm.

3\. Unregistered employees of attorneys or
agents, public stenographers, and all other per-
sons not within the provisions of paragraphs 1
and 2 above will be given access only upon
presentation of a written authorization for ac-
cess signed by a person specified in paragraph 1
above, which authorization will be entered as
a part of the official file.

## 105 Disbarred Attorney Cannot Inspect

Patent Office employees are forbidden to hold
either oral or written communication with an
attorney who has been suspended or excluded
from practice regarding an application unless
it be one in which said attorney is the applicant.
Power to inspect given to such an attorney will
not be accepted.

# 106 Control of Inspection by Assignee [R-29]

The assignee of the entire interest in an ap-
plication may intervene in the prosecution of
the case, appointing an attorney of his own
choice. (See rule 32.) Such intervention,
however, does not exclude the applicant from
access to the application to see that it is being
prosecuted properly, unless the assignee makes
specific request to that effect. Even when such
request is made, the applicant may be permit-
ted to inspect the case on sufficient showing
why such inspection is necessary to conserve
his rights. In re The Kellogg Switchboard &
Supply Company, 1906 C.D. 274.

# 106.01 Rights of Assignee of Part In- terest

While it is only the assignee of the entire
interest who can intervene in the prosecution
of an application or interference to the exclu-
sion of the applicant, an assignee of a part
interest or a licensee of exclusive right is
entitled to inspect the application.

## 107 "Secrecy Order" Cases [R-28]

Title 35, United States Code, section 181
provides, in part, that any invention in which
the Government does not have a property in-
terest, and whose publication or disclosure by
the granting of a patent might. in the opinion
of the Commissioner, be detrimental to the na-
tional security, shall be made available to the

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defense agencies. Upon notification by the de-
fense agencies, the Commissioner is directed to
order that such inventions be kept secret and
to withhold the grant of a patent for such pe-
riod as the national interest requires. Where
the Government has a property interest, the
interested Government agency determines
whether to notify the Commissioner to keep the
invention secret.

35 U.S.C. 184, Filing of application in foreign coun-
try. Except when authorized by a license obtained
from the Commissioner a person shall not file or cause
or authorize to be filed in any foreign country prior to
six months after filing in the United States an applica-
tion for patent or for the registration of a utility model,
industrial design, or model in respect of an invention
made in this country. A license shall not be granted
with respect to an invention subject to an order issued
by the Commissioner pursuant to section 181 of this
title without the concurrence of the head of the depart-
ments and the chief officers of the agencies who caused
the order to be issued. The license may be granted
retroactively where an application has been inadver-
tently filed abroad and the application does not dis-
close an invention within the scope of section 181 of
this title.

The term "application" when used in this chapter
includes applications and any modifications, amend-
ments, or supplements thereto, or divisions thereof.

Since May 3, 1965, all licenses granted by the
Commissioner of Patents to file patent applica-
tions in foreign countries have been made of
record in the application to which they cor-
respond. The granted request for a license and
the license are given paper numbers and en-
dorsed on the file wrapper and on the Serial
Register Card. Requests for licenses which are
not approved are neither recorded nor placed in
the application file wrapper.

# 107.01 "Review" of Applications for Secrecy Order [R-42]

Under 35 U.S.C. 181 the obligation is di-
rectly on the Patent Office to appreciate the
possible interest of the defense agencies in
pending applications and to take steps to
make them available to such agencies.

All new applications received in the Patent
Office are now being screened by Group 220
personnel to determine which applications
should be made available for review or treated
under the Atomic Energy and Space Acts for
property interests.

All applications that have been screened by
Group 220 will be stamped "LICENSING &
REVIEW" inside the file wrapper. This
stamp simply indicates that the application has
been initially screened and is not to be con-

sidered as a conclusive indication of the security
status of the application or as an indication that
a license for foreign filing will be granted.

All papers subsequently filed must be in-
spected by the examiner to determine whether
matter of an obvious defense interest which
requires a security review has been introduced
into the application. In such applications for-
warded to the Licensing and Review Section of
Group 220, it is helpful if a check mark is placed
in the margin opposite to the part which is
significant in suggesting security review.

Applications in Group 220 for the review
thereof by the appropriate defense agency may
be borrowed by the examiner when reached for
action. Allowable applications requiring con-
sideration for processing under Section 152 of
the Atomic Energy Act (42 U.S.C. 2182) and/or
Section 305c of the Space Act (42 U.S.C. 2457c)
are processed to issue, including counting of the
issue, and forwarded through Group 220 to the
Patent Issue Division. When the security
status of the application cannot be promptly
decided, Group 220 will report the progress that
has been made to the group director. Any ac-
tion to be taken in the case, for the purpose
of advancing said group date, must be arranged
through the group director.

# 107.02 Prosecution of "Secrecy Or- der" Cases [R-28]

"Secrecy Order" Cases are examined as in
other cases, but may not be passed for issue;
nor will an interference be declared where one
or more of the conflicting cases is secret. See
§ 1111.04.

In case of a final rejection, while such action
must be properly responded to, and an appeal,
if filed, must be completed by the applicant to
prevent abandonment, such appeal will not be
set for hearing by the Board of Appeals until
the secrecy order is removed, unless specifically
ordered by the Commissioner.

When a "Secrecy Order" Case is in condition
for allowance. a notice of allowability [Form
D-10] is issued, thus closing the prosecution.
Any amendments received thereafter are not
entered or responded to until such time as the
secrecy order is rescinded. At such time
amendments which are free from objection will
be entered; otherwise they are denied entry.

# 108 Applications Relating to Atomic Energy [R-28]

Rule 14 (c) reads as follows:

"Applications for patents which disclose or which
appear to disclose, or which purport to disclose, in-

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ventions or discoveries relating to atomic energy are
reported to the Atomic Energy Commission and the
Commission will be given access to such applications,
but such reporting does not constitute a determination
that the subject matter of each application so reported
is in fact useful or an invention or discovery or that
such application in fact discloses subject matter in
categories specified by secs. 151(c) and 151(d) of the
Atomic Energy Act of 1954, 68 Stat. 919; 42 U.S.C.
2181."

The Atomic Energy Act of 1954 requires that
the Commissioner of Patents shall notify the
Atomic Energy Commission of all applications
for patent which, in his opinion, disclose in-
ventions or discoveries required to be reported
under subsection 151(c) (42 U.S.C. 2181c)
which reads in part as follows :

". . . any invention or discovery useful in the pro-
duction or utilization of special nuclear material or
atomic energy. . . . "

The term "atomic energy" is defined as all forms
of energy released in the course of nuclear fission
or nuclear transformation (42 U.S.C. 2014c).

All applications received in the Patent Office
are sent to Licensing and Review for screening
by Group 220 personnel, under rule 14(c), in
order for the Commissioner to fulfill his re-
sponsibilities under section 151(d) (42 U.S.C.
2181d) of the Atomic Energy Act. Papers sub-
sequently added must be inspected promptly
by the examiner when received to determine
whether the application has been amended to
relate to atomic energy and those so related
must be promptly forwarded to Licensing and
Review.

When applications are forwarded to Group
220 for consideration of the above requirements.

it is helpful if a check mark is made in the
margin opposite to the part of the paper which
is significant in suggesting that the application
be reported.

In considering applications under the terms
of rule 14(c), the relation of the subject matter
to national security under § 107.01 is not a
significant factor. EVEN applications using a
well-known radioactive source for any purpose
or which disclose inventions having special rela-
tion to atomic energy MUST BE SUBMIT-
TED TO Group 220. See § 706.03 (b).

## 109 Security Markings [R-42]

Under Executive Order 11,652, 37 Federal
Register, Number 48, pages 5212 et seq., stand-
ards are prescribed for the marking, handling,
and care of official information which requires
safeguarding in the interest of security.

Papers marked as prescribed in the Execu-
tive Order, and showing that such marking is
applied by, or at the direction of, a Govern-
ment Agency, are accepted in patent applica-
tions. All applications or papers in the Patent
Office bearing words such as "Secret," or "Con-
fidential," must be promptly referred to Group
220 for clarification or security treatment. Un-
der no circumstances can any such application,
drawing, exhibit, or other paper be placed in
public records, such as the Patented Files, until
all security markings have been considered and
declassified or otherwise explained.

Authorized security markings may be placed
on the patent application drawings when filed
provided that such markings are outside the
illustrations and that they are removed when
the material is declassified, rule 84 (1).

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