What the check of applications for the availability of the information constituting a state secret means and what it is for

According to the definition adopted in the Russian legislation, a state secret shall mean the information protected by the state in the field of its military, foreign policy, economic, intelligence, counterintelligence and operational and search activities, the dissemination of which can be detrimental to the state.

According to the Rules for carrying out a check of the availability in the applications for the grant of a patent for an invention, a utility model or an industrial design created in the Russian Federation, the information constituting a state secret, approved by Resolution of the Government of the Russian Federation No. 928 of December 24, 2007, all applications for the grant of a patent for an invention, a utility model or an industrial design created in the Russian Federation, filed with Rospatent by the Russian legal entities or the citizens of the Russian Federation, including the international and the Eurasian applications are subject to be checked for the availability of the information constituting a state real secret.

During the period of a formal examination in respect of the applications received by Rospatent, a preliminary check for the availability of the information constituting a state secret shall be carried out. The check shall be carried out by way of familiarizing the employees of Rospatent, who have the necessary security clearance form to a state secret, with them.

In the event that an employee of Rospatent discovers the circumstances requiring a check of the application materials by the representatives of the Federal Executive Authorities and the state corporations, whose heads are authorized to classify the information as a state secret (hereinafter referred to as the competent authorities), the further check of the application in accordance with its thematic affiliation shall be carried out by the representatives of the correspondent competent authorities.

The familiarization with the application materials and their check by the representative of the competent authority shall be carried out in Rospatent. In the event that the representative of the competent authority detects the circumstances that, in his opinion, require a check of the application content, the application shall be filed by Rospatent using special communication tools directly to the competent authority.

At the same time, the consideration by Rospatent of the above said application shall be suspended for the period of the above said checks.

According to Resolution of the Government of the Russian Federation No. 928, the applications for the grant of a patent for an invention, a utility model or an industrial design are not subject to be checked, if, when filing them, the conclusion of the corresponding Commission of the applicant for a state secret protection created in the established manner stating the non-availability of the information constituting a state secret is attached to them.

In this regard, Rospatent shall notify the applicants carrying out the patenting of the results of intellectual activity that the availability of the above said conclusion together with the application materials will allow optimizing the terms of the paperwork for the applications regarding the grant of a patent for an invention, a utility model or an industrial design.

According to the list of the information constituting a state secret, as well as to the provision on classifying such information that is contained in Article 5 of the Law on a State Secret, the state secret shall be:

1. the information in the military field:

on a content of the strategic and operational plans, the documents of the combat control for the preparation and conduct of operations, the strategic, operational and mobilization deployment of the Armed Forces of the Russian Federation, other troops, the military formations and authorities stipulated by the Federal Law “On Defense,” on their combat and mobilization readiness, on the creation and on the use of the mobilization resources;

on the construction plans of the Armed Forces of the Russian Federation, other troops of the Russian Federation, on the development directions of the weapons and military equipment, on a content and the results of the implementation of the targeted programs, research and development works for the creation and modernization of the models of the weapons and military equipment;

on a development, technology, the manufacture, manufacture volumes, storage, disposal of the nuclear weapons, their components, the fissile nuclear materials used in the nuclear weapons, the technical means and (or) the methods of protecting the nuclear weapons from an unauthorized use, as well as the nuclear energy and the special physical installations of a defense character;

on the tactical and technical characteristics and the military applicability of the models of the weapons and military equipment, on the properties, formulations or technologies for the manufacture of the new types of the rocket fuel or the explosives of a military character;

on a disposition, purpose, a degree of readiness, the protectability of the classified facilities and the high-security facilities, on their design, construction and operation, as well as on the allocation of lands, mineral resources and water zones for these facilities;

on a disposition, the real names, on the organizational structure, on the weapons, a number of troops and a state of their combat support, as well as on a military and political, and (or) an operational situation;

2. the information in the field of economy, science and technology:

on a content of the plans for preparing the Russian Federation and its separate regions to possible military actions, on the mobilization capacities of the industry for the manufacture and repair of the weapons and military equipment, on the manufacture and supplies, on the stocks of strategic raw materials and materials, as well as on the deployment, actual sizes and the use of the state material reserves;

on the use of the infrastructure of the Russian Federation in order to enhance the defense potential and the state security;

on the forces and means of the civil defense, on a disposition, purpose and a protectability degree of the administrative facilities, on a degree of enhancing the security of the population, on the functioning of the transport and communications in the Russian Federation in order to enhance the state security;

on the volumes, plans (assignments) of the state defense order, on the manufacture and supplies (in monetary or physical terms) of the weapons, military equipment and other defense products, on the availability and increase of the capacities for their manufacture, on the relationship of the enterprises for cooperation, on the developers or on the manufacturers of these weapons, military equipment and other defense products;

on the achievements of science and technology, scientific and research, design and experimental, project works and technologies having a great defense or economic importance that influence on the state security;

on the platinum reserves, platinum group metals, natural diamonds in the State Fund of Precious Metals and Gemstones of the Russian Federation, the Central Bank of the Russian Federation, as well as on the reserve volumes in the mineral resources, mining, the manufacture and consumption of the strategic natural resources of the Russian Federation (according to the list adopted by the Government of the Russian Federation);

3. the information in the field of the foreign policy and economy:

on the foreign policy, foreign trade of the Russian Federation, the premature dissemination of which may be detrimental to the state;

on the financial policy in respect of the foreign states (with the exception of the generalized indicators regarding the external debt), as well as on the financial or monetary and credit activities, the premature dissemination of which may be detrimental to the state;

4. the information in the field of intelligence, counterintelligence and operational and search activities, as well as in the field of counterterrorism and in the field of enhancing the security of the persons in respect of whom the decision to apply the state protection measures has been made:

on the forces, means, sources, methods, plans and results of the intelligence, counterintelligence, operational and search and counterterrorism activities, as well as the information on financing these activities, if this information discloses the above said information;

on the forces, means, sources, methods, plans and results of the activities for enhancing the security of the persons in relation to whom the decision to apply the state protection measures has been made, the information on financing these activities, if this information discloses the above said information, as well as the separate information about the above said persons;

on the persons, who are cooperating or who have cooperated on a confidential basis with the authorities engaged in intelligence, counterintelligence and operational and search activities;

on the organization, on the forces, means and methods for enhancing the security of the state protection facilities, as well as the information on financing these activities, if this information discloses the above said information;

on the system of the presidential, governmental, cryptologiсal, including the encrypted and classified information, on the ciphers, on the development, on the manufacture of the ciphers and the provision with them, on the methods and tools for analyzing the encryption tools and the special protection tools, on the information and analytical systems of a special purpose;

on the methods and means of the protection of the classified information;

on the organization and on the actual state of the state secret protection;

on the protection of the state border of the Russian Federation, the exclusive economic zone and the continental shelf of the Russian Federation;

on the Federal Budget expenditures related to enhancing the defense, the state security and the law enforcement activities in the Russian Federation;

on training the personnel, revealing the arrangements carried out in order to enhance the state security;

on the measures for enhancing the protection of the critically important facilities and the potentially hazardous facilities of the Russian Federation infrastructure from terrorist attacks;

on the results of the financial monitoring in relation to the organizations and individuals received in connection with the check of their possible involvement in the terrorist activities;

on the measures to enhance the security of the critical information infrastructure of the Russian Federation and on a state of its protection from computer attacks.

If in the course of the consideration of the application it is established that the information contained therein constitutes a state secret, the measures shall be taken to classify the application in the established manner.

The utility models and industrial designs containing the information constituting a state secret shall not be granted the legal protection in accordance with Article 1349 of the Civil Code of the Russian Federation.

In this case, the applicant shall be informed that it is impossible to obtain a patent for a utility model or an industrial design regarding such application.

The legal implications of classifying the application documents are that the applicant may:

- withdraw the application;

- convert the application for a utility model into an application for a secret invention.

Rospatent shall suspend the consideration of such application till the receipt from the applicant of one of the above said decisions or till the declassification of the application.

According to Article 1401 of the Civil Code of the Russian Federation, the applications for the secret inventions, for which the degree of secrecy “special importance” or “top secret” has already been established, as well as for the secret inventions that relate to the weapons and military equipment and the methods and means in the field of intelligence, counterintelligence and operational and search activities and for which the degree of secrecy “secret” has been established, shall be filed depending on their thematic affiliation to the Federal Executive Authorities authorized by the Government of the Russian Federation, the State Atomic Energy Corporation “Rosatom,” the State Corporation for Space Activities “Roskosmos” (hereinafter referred to as the authorized authorities). The applications for other secret inventions shall be filed with the Federal Executive Authority on Intellectual Property (FIIP).

If, when considering an application for an invention by the FIIP, it is established that the information contained therein constitutes a state secret, such application shall be classified in the manner established by the legislation on a State Secret, and it shall be considered as an application for a secret invention.

The classification of the application filed by a foreign citizen or a foreign legal entity shall not be allowed.

The publication of the information on a secret application shall not be exercised.

When establishing the novelty of the secret invention, the prior art, according to Paragraph 2 of Article 1350, shall also include, provided that they have an earlier priority, the secret inventions patented in the Russian Federation and the secret inventions, for which the copyright certificates of the USSR have been issued, if the degree of secrecy being not higher than the degree of secrecy of the invention, the novelty of which is being established, has been established for these inventions.

An objection to the decision made by the authorized authority regarding the application for a secret invention shall be considered in accordance with the manner established by it. The decision made regarding such objection may be challenged in court.

The provisions of Article 1379 of the Code of the Russian Federation on converting an application for an invention into an application for a utility model shall not be applied to the applications for secret inventions.

According to Article 1395 of the Code of the Russian Federation, the application for the grant of a patent for an invention or a utility model created in the Russian Federation, may be filed in a foreign state or to an international organization after six months from the date of filing the corresponding application with the FIIP, provided the applicant is not notified within the specified period that the application contains the information constituting a state secret. The application for an invention or a utility model may be filed earlier than the above said period, but after carrying out, at the request of the applicant, a check for the availability in the application of the information constituting a state secret.