Defensive publishing is a cost-effective method to protect technology without applying for patents. Publishing documents that establish your innovation as “prior art” in the public domain can decrease unnecessary patent expenses for innovations that have operational but non-commercial value to your organization. Publishing prior art also blocks competitors from obtaining a patent on technology described by the documents you’ve published.
Any document that describes a technology to the public can be added to the Prior Art Database – everything from user manuals, maintenance manuals, drawings, press releases and other marketing collateral, and archived back files of almost any kind.
The America Invents Act, the final provisions of which went into effect in March 2013, has redefined prior art for U.S. inventors. Under the law, defensive publishing immediately and permanently extinguishes patent rights, with the exception of a one-year grace period for inventors. Publishing prior art won’t provide exclusionary rights to the inventor, but it can significantly reduce future infringement risks while providing freedom to operate and protecting the value of foundational patents in a portfolio. It’s also a way to effectively and securely expose IP licensing opportunities to corporations, universities and financial institutions.
Publishing prior art in lieu of filing patents on incremental innovations may simply make good business sense. A 2013 survey of inventors conducted by Georgia Tech and Japan’s RIETI found that just 82% of inventions were patented with commercial use in mind. Other reasons include blocking patents, pure defense and prevention of “inventing around” – surrounding a core patent with incremental patents to limit the first inventor’s licensing opportunities. Each of these strategies could be managed more effectively through defensive publishing.
Consider the remaining 18% in the context of the approximately 40,000 U.S. patents granted each year in the software technology space. If you estimate an average fee of $150,000 – the cost to apply for and maintain a patent over its lifetime – companies are spending in excess of $1 billion on the 7,200 or so patents that provide no direct commercial value.
Defensively publishing those same 7,200 patent applications as prior art would cost between $2 million-$3 million – a fraction of the cost at a fraction of the time to place the innovations into the public domain.
Ask yourself this: How many of your patents would be better served as prior art?
Want to learn more about how publishing prior art can be beneficial to your organization? Drop us a message and we can help.