Farag v. Defense Threat Reduction Agency, No. 07 C 1688, 2007 WL 2404625 (N.D. Ill. Aug. 15, 2007) (Hart, J.).
Judge Hart dismissed for lack of subject matter jurisdiction plaintiff’s suit seeking that the Court order the PTO to place a secrecy order on plaintiff’s patent application for a process of separating an isotope from uranium for use in nuclear applications. Plaintiff’s application is about to be published and plaintiff believes that publication of the application would allow use of his process for illicit purposes that might threaten national security. The Invention Secrecy Act provides a patent applicant the right to appeal the issuance of a secrecy order, but not the right to appeal the denial of a secrecy order. See 35 U.S.C. Section 181; 35 C.F.R. Section 5.4. The Invention Secrecy Act also permits a suit for compensatory damages, but only based on damage created by a secrecy order, not the absence of one. Finally, the Court noted that plaintiff might have a claim pursuant to the Administrative Procedure Act (the "APA"), but the APA requires that the plaintiff by harmed by the agency (PTO) action. The Court noted that potential threat to national security based upon a review of plaintiff’s patent application was too remote and general to create standing pursuant to the APA. As a result, the Court dismissed plaintiff’s complaint. It is also interesting to note, the Court instructed plaintiff to file any appeal with the Seventh Circuit, instead of the Federal Circuit despite the fact that the case is focused on PTO procedure.