Identify Prior Art to Support Patent Prosecution

Defensive publishing is the intentional and purposeful publication of innovation into the public domain. Defensive publishing, is a cost-effective intellectual property strategy consisting of disclosing aspects of your invention so it becomes prior art, precluding others from obtaining a patent on your idea.

Published technical disclosures, used in conjunction with patents, strengthen an IP portfolio and protect your company’s freedom to operate.

The strategy of defensive publishing is most commonly used to save the cost of a full patent application. If it appears unlikely that the innovation can itself be used to secure market advantage, and recoup the cost of patenting through licensing, sale, or direct exploitation, defensive publication may be the better commercial option. For a few hundred dollars you can effectively:

- Secure freedom to operate
- Block a competitor’s patent from issuing
- Reduce unnecessary prosecution and filing expenses
- Preclude others from “picket-fencing” around your foundational patents

The date when a public disclosure takes place is the bar date. (Link to support page.)

The bar date signifies that the person or company who made the technical disclosure now has one year to either file a patent application or a provisional patent application.

A provisional patent application establishes an early filing date that gives the person filing twelve months to file a patent application.

Technical disclosure can give you a bar date which expires in one year and the filing of a provisional application after that will add on another year. Therefore it is technically possible to delay the actual patent application for up to two years and to prevent others from acquiring a patent on your invention at all.

This process allows inventors to test out the validity and commercial appeal of an invention before committing to the expense of the patenting process. In this way, it can be seen how intellectual property laws can be combined to form strategies for maximum business advantage.

Publishing Advantages Over Filing for a Patent:

The patenting process is expensive. The only way a patent application can be done cheaply is to not involve patent attorneys or any other outside services.

It is important to bear in mind that company research and development departments are always in the process of coming up with new ideas and technologies. You might have a new idea, but the chances are at least one other company or individual is working on something similar.

For example imagine that several cleaning companies are all working on an idea for a mop that dispenses cleaning product from within rather than needing the consumer to work harder. To get any competitive advantage, one company can release prior art and protect some aspects of the invention. If they do not release prior art, it becomes increasingly likely that another company will. The race to the prior art is easier to win than the race to a patent.

Another example for a reason for technical disclosure publishing could be a university or research project. By releasing a technical disclosure, they may be able to secure funding from outside sources that would not otherwise have been available. The funding may lead to the development of a patentable idea.