Protecting Defence Innovation: The Strategic Case for Non-Publication

In the defence sector, patent strategy is not just about securing innovation; it’s about controlling information. This blog explores the rarely used but powerful option of filing a U.S. patent with a non-publication request. For defence innovators operating in NATO-aligned jurisdictions, withholding early disclosure through a non-publication request can help maintain confidentiality, reduce competitive risk, and support global collaboration through security agreements. Read on to understand when non-publication makes strategic sense—and when it could limit your options.

When it comes to defence innovations, timing and control over information can be just as critical as the technology itself. For companies developing sensitive or dual-use capabilities, even the act of filing a patent can introduce risk, exposing technical details before a product is ready for market or before security protocols are in place.

The desire/decision to withhold publication isn’t about secrecy for secrecy’s sake; it's about strategic control. Done right, it can protect your invention and your competitive edge.

In this context, a non-publication request can be a vital tool in your innovation toolbox. In the defence industry, intellectual property (IP) is more than a legal asset—it’s a means of national security.

When filing a patent application in the U.S., one critical decision is whether to allow pre-grant publication or to request non-publication. This choice can offer more than just privacy—it provides leverage, discretion, and time to manoeuvre in environments where early disclosure could undermine commercial or strategic objectives.

When filing a patent application, one critical decision is whether to allow pre-grant publication or to request non-publication. This option can offer leverage, discretion, and time to manoeuvre in environments where early disclosure could compromise commercial or strategic objectives..

What Is a Non-Publication Request?

By default, most patent offices publish applications 18 months after the earliest filing date, even before the patent is granted. At that point, the technical details become available to the public, including competitors. A non-publication request, if granted, allows applications to opt out of this early disclosure, keeping the application confidential until the patent is issued, usually 3-5 years after filing.

In the U.S., this is governed by 35 U.S.C. §122(b) and 37 CFR §1.213. To qualify, the following conditions need to be met:

• The applicant must certify that the invention has not been and will not be filed in another country or under an international agreement (like the PCT) that mandates 18-month publication.
• The request must be filed at the same time as the application.

Failing to meet these conditions, or later deciding to file internationally, requires withdrawing the request and notifying the USPTO within 45 days to avoid abandonment.

Where is Non-Publication Available?

The non-publication option is not universally supported across all patent jurisdictions which means your ability to control disclosure timelines depends heavily on where you file. As a result, having a clear IP filings strategy becomes essential.

• United States: Allows non-publication requests for non-provisional applications if no foreign filings are planned.
• Japan: Introduced a system under the Economic Security Promotion Act for non-disclosure of certain defence-related inventions, including restrictions on foreign filings.
• Other Jurisdictions: Most countries (e.g., EU, UK, Canada) do not allow voluntary non-publication; applications are published at 18 months by default. Instead, secrecy is handled through security orders for defence-sensitive inventions.
• Reciprocal Secrecy Agreements: The U.S. maintains bilateral and multilateral agreements with countries for the reciprocal filing of classified patent applications and/or patent applications with Secrecy Orders. Most notably, the NATO Agreement for the Mutual Safeguarding of Secrecy of Inventions Relating to Defence and for Which Applications for Patents Have Been Made, allows for patent applications with Secrecy Orders filed in one NATO country to be filed in the U.S., and vice versa, and authorizes automatic reciprocal Secrecy Orders. This Agreement provides an avenue for the sharing of classified inventions and allows for international collaboration in the research and development of the Defence-related technology.

What Are the Advantages for Defence Entrepreneurs?

While often overlooked, non-publication can be a strategic differentiator—especially in sensitive industries like defence. For innovators operating on tight development timelines and under strict confidentiality obligations, the ability to keep an invention under wraps for years can provide meaningful business and security advantages.

Let’s take a closer look at what this option can offer.

1. Enhanced Confidentiality
   Keeps sensitive technologies out of public databases, reducing espionage and competitive intelligence risks.
2. Strategic Messaging Without the Disclosure Risk
   Filing a patent gives you the right to market products as “patent pending”. For companies navigating defence contracts or seeking capital to scale, being able to confidently say “we’ve filed” without disclosing specific technical details can open doors while reducing competitive vulnerability.
3. Reduced Pre-Grant Challenges
   In some industries, once a patent application is published, it becomes fair game for competitors to examine, challenge, or design around. Non-publication avoids pre-grant oppositions or scrutiny from competitors, which can delay patent issuance. In other words: staying quiet can mean staying agile.

What Are the Disadvantages and Risks?

While the benefits are real, non-publication is not without its trade-offs—and in some cases, those trade-offs can have a lasting impact on your patent strategy.

1. No Foreign Filing Option
   One of the key requirements of non-publication is that you forfeit the ability to file in other countries. If you later decide to file abroad, you must rescind the request and notify the USPTO within 45 days of foreign filing—or risk abandonment.
2. Lost Opportunity for of Provisional Damages
   When a published patent application later becomes a granted patent, it can in some cases be used to claim damages for infringement that occurred before the patent was issued. This benefit doesn’t apply to non-published applications. If your invention ends up in the market faster than your patent is granted, you may have limited recourse without that early publication.
3. Administrative Burden
   Non-publication isn’t a “set it and forget it” decision, it requires strict compliance with timing and certification rules; mistakes can lead to unintentional abandonment. If your team isn’t actively tracking deadlines or unfamiliar with how non-publication interacts with global filing systems, there’s real risk of procedural missteps. Coordination with your IP counsel and business development team is essential.

When Does Non-Publication Makes Strategic Sense?

So, when does it actually make sense to go this route?

Here are a few scenarios where non-publication aligns with strategic priorities:

• Your IP strategy is U.S.-centric and foreign filings are unlikely. For globally scalable defence technologies, weigh the benefits of secrecy against the flexibility of international protection.
• You’re part of a multi-country collaboration under a NATO secrecy agreement, and you want to align your filing strategy with reciprocal security protocols.
• Your invention may trigger security review or fall under export control, and you need time to navigate internal or regulatory pathways before full disclosure.

In each of these cases, the strategic value of controlling the disclosure timeline may outweigh the risks—as long as the decision is made intentionally and with the right safeguards in place. Always consult an IP specialist familiar with defence regulations and security laws before making this decision.

Final Thoughts

Non-publication isn’t the standard route…and it’s not right for every filing. But in the defence sector, where innovation often intersects with regulatory complexity, sensitive partnerships, or evolving market timing, it can offer a critical layer of control. Delaying disclosure gives innovators room to move, whether to meet internal milestones, address compliance requirements, or prepare for international collaboration, without prematurely exposing technical details.

If you’re considering whether a non-publication request fits your patent strategy, or need guidance navigating defence-specific IP constraints, Stratford Intellectual Property can help. We work with defence innovators, contractors, and scale-ups to align their IP approach with business goals, compliance requirements, and national security considerations.

Let’s talk about how your IP can serve as both a shield and a strategic asset.

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