DAJA-PA

Commissioner of Patents and Trademarks

the international application will be subject to licensing and security review; that language presupposes the existence of an international application which has been filed in the United States Receiving Office prior to such review. It further provides specifically that the filing of an international application in a country other than the United States shall be considered to constitute foreign filing for the purposes of Chapter 17; the obvious corollary is that the statute contemplates that an international application on file in the United States Receiving Office should not be considered to be a foreign filing. Finally, the statute discusses treatment of an international application in the United States Receiving Office prior to the time that a license for foreign filing is denied or a secrecy order is imposed. Therefore, the international application would have to have been filed in the United States Receiving Office prior to the existence of a foreign filing license and prior to secrecy consideration in order for the statutory language to be meaningful.

It is therefore urged that the proposed rules be changed to permit the United States Receiving Office to accept international applications without prior issuance of a foreign filing license, even though no corresponding United States application is on file. A simultaneous request for a foreign filing license should be required. The international application could then be reviewed for licensing consideration. If the invention is not on the Patent Security Category Review List, the license could be issued immediately, and further processing of the international application could continue. If the invention is on the Category List, the application could be duly circulated in microfiche form to the appropriate defense agencies for normal security review. If a secrecy order is required, the order could then be placed on the identifiable international application, and the license request could be automatically denied. The applicant could file a corresponding United States national application and seek modification of the secrecy order to permit subsequent filing of selected foreign applications. The United States Receiving Office could defer transmittal of the international application to the International Bureau or the International Searching Authority of Washington for twelve months pending review without causing any loss of priority for the applicant.

DAJA-PA

Commissioner of Patents and Trademarks

Suggested amendments to the proposed rules and a sectional analysis are attached. These amendments would relieve the licensing review burden on the Patent and Trademark Office and defense agencies and should be more satisfactory to applicants and the patent bar.

I request the opportunity to make a brief oral presentation of this matter at the hearing to be held on May 26, 1977. Thank you for your consideration.

Thank you for your letter of July 14, in which you pose several questions to the Information Security Oversight Office (ISO) concerning the Restricted Data provisions of the Atomic Energy Act.

There are two points which I believe bear emphasis. The first concerns the lack of jurisdiction over Restricted Data and Formerly Restricted Data within ISOO, a point you note in your letter. The second is a related problem. To the extent your questions hypothesize the amendment of Executive Order 12065, ISOO's charter, to regulate access to Restricted Data, I am quite concerned about the legal authority to do so at this time. Because the mandate over Restricted Data is statutory, while this Office's authority flows from the Executive Order, I believe some amendment to the Atomic Energy Act would be necessary before ISOO could presume to regulate any aspect of the statutory provisions relating to Restricted Data.

On the surface at least, the concept of one system to regulate both
Restricted Data and other national security information appears
attractive. In theory one system would permit uniform marking,
uniform time limits, uniform appeal rights and uniformity in other
substantive and procedural rules, as suggested by your letter. This
should not suggest, however, that every rule or standard which evolves
from the present Executive Order would be appropriate for application
to Restricted Data. First, the implementation of the Order is still
quite recent, and this Office, as well as other affected agencies,
continues to scrutinize the viability of each of its provisions.
Second, because this Office has not been involved in an examination
of Restricted Data, ISOO is not prepared at this time to adjudge
legitimate distinctions in the regulation of atomic energy data from
other national security information.

You specifically question whether ISOO believes E. 0. 12065 should be amended to authorize citizen appeal to ISOO under the mandatory review procedure. It is unclear to me if you are referring only to appeals for Restricted Data or to mandatory review appeals generally. In either case, under E. 0. 12065, with one rather minor exception, ISOO does not serve as an appellate tribunal over agency mandatory review decisions. It is my view that other provisions of the Order grant ISOO enough oversight authority over national security information that it is not necessary at this time to amend the Order to place ISOO within the mandatory review appellate cycle. My views in this regard would, of course, be the same if ISOO did have some jurisdiction over Restircted Data.

-2

I believe I have answered your other questions to the extent I am presently able to do so in stating my general views above. In summary, ISOO believes that any attempts to develop a unified acess and control system over both Restricted Data and other national security information would require very careful consideration and study. Accordingly, I am not in a position to recommend or support any specific legislative changes. Should the Congress consider specific amendments, I would be pleased, acting in concert with the other concerned executive branch agencies, to present IS00's views on the advisability of such legislation.

Sincerely,

STEVEN GARFINKEL

Director

A DCR grantee who also works with the National Security Agency
tells me that NSA has sole statutory authority to fund research
in cryptography; and, in fact, that other agencies are specifi-
cally enjoined from supporting that type of work.

Since my program and others in the research directorate support
research very closely related to, if not directly in crypto-
graphy it is important that we find out as soon as possible if
we are acting counter to federal law. I'll hold up making any
new grant in this field until you let me know.

And W. Wayte

Fred W. Weingarten