FAQs

Frequently asked questions on secrecy protection

What are State secrets?

State secrets are facts, objects or intelligence which are only accessible to a limited category of persons and must be kept secret from foreign powers in order to avert a danger of serious prejudice to the external safety of the Federal Republic of Germany under Sec. 93(1) German Criminal Code (Strafgesetzbuch).

Have I invented a State secret?

Applications relating to the following technological fields, above all, may contain State secrets:

military and armament technology
- such as armours, explosives, ammunition, direction finders and measuring devices
nuclear energy technology
- such as gas ultracentrifuges, fusion reactors, nuclear/plasma engineering
documents of title and security documents
- such as securities, bank notes, identity cards
cryptology
- such as coding and decoding systems, communication technique

In IP procedures, State secrets occur exclusively in patent and utility model matters. Applications for trade marks and designs cannot contain State secrets.

What happens to my State secret?

When a patent or utility model application is filed for an invention constituting a State secret, the examining section of the DPMA orders that no publication must take place. The order must be issued within four months, in exceptional cases within six months, from the receipt of the application. Where the examining section of the DPMA has not issued the order at the expiry of the mentioned period, the applicant can assume, on principle, that his application does not constitute a State secret. This order is preceded by a consultation process between the DPMA and the Federal Ministry of Defence.

What do I need to observe?

If a secrecy order has been issued, the applicant - just like the DPMA - is not allowed to make the invention available to the public. Publication is excluded for the period of secrecy, which is, on principle, unlimited. Commercial exploitation of the invention is subject to certain conditions.

Specific care is required if you deal with State secrets. Under Sec. 94 et seq. of the German Criminal Code (Strafgesetzbuch) such violations are criminal acts.

To whom may I confide my invention?

On principle, both domestic and foreign State secrets may be made accessible to a limited category of persons only. So-called classified information may only be disclosed to those persons who absolutely need this intelligence for professional reasons. This must be ensured by organisational measures and security equipment.

This limited category of persons must undergo a security clearance check by the Federal Office for the Protection of the Constitution.

How is the security clearance check carried out?

Responsibility lies with the officer in charge of security of classified information at the DPMA. The security clearance check is carried out by the Federal Office for the Protection of the Constitution based on a security declaration to be completed by the person concerned.

If a patent attorney or patent agent has the concrete intention to become active in matters involving security of classified information, he must previously have received the relevant authorisation (certificate) by the competent officer of the DPMA. This applies as well to staff who deal with this matter or will do so in future. It is not admissible to conduct a security clearance check or issue a 'blank' authorisation if there is no concrete clue in the file that a State secret is to be processed.

The security clearance check and authorisation procedure usually takes two to three months.

Are there different classification levels?

The levels of classification are: confidential, secret and top secret. The last-mentioned level virtually does not occur in practice and is an exception. The most frequent case is classification level "secret". In this case, a relevant authorisation, preceded by an enlarged security clearance check ("Ü2"), is compulsory.

What is EURATOM?

EURATOM, or EAEC, is the European Atomic Energy Community established in 1957 by a treaty. The objective of the organisation is to foster peaceful uses of atomic energy. EURATOM is based in Brussels. EURATOM files are inventions relating to the research field of nuclear energy or having a connection to the development of nuclear energy.

Are EURATOM applications "State secrets"?

This might be the case, but is not necessarily so. It will only be found out at closer inspection whether the IPC class requires submission of the application to the Federal Ministry of Defence. If the invention is not a State secret, it can be processed by persons not having a special authorisation.

Who or what is office 99?

Office 99 is the central unit of the DPMA in charge of patent and utility model files that are subject to a security procedure or secrecy order.

How do I file a State secret?

The application papers are the same as for "conventional" patent or utility model applications. If there are concrete clues that the invention might constitute a State secret, the applicant should mark the application and the envelope accordingly. This marked envelope has to be placed in a neutral envelope and be forwarded to the DPMA. The outer envelope must only be marked with the details required for delivery. There must be no indications of the contents or that the consignment is subject to special treatment (Sec. 21(6) of the General Administrative Instructions for the physical and organisational protection of classified material - Classified Material Instructions). These applications may not be forwarded to the European Patent Office, as it is a European agency which must not gain intelligence of German State secrets.

Is electronic filing admissible?

Even after the introduction of the electronic case file, it is not possible to submit State secrets to the DPMA by means of a secure electronic way of transmission (neither online nor by fax). For this reason, applications and the related correspondence must always be filed on paper.