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IP Strategy

Defensive Publishing Mistakes (and Potential Consequences)

By September 8, 2021September 29th, 2021No Comments

Writing a great defensive publication, or defensive disclosure, is more than checking for spelling mistakes and grammatical errors. How you describe your invention matters—a lot. Your writing choices can negatively impact the effectiveness of your defensive publication. Accurate language that balances both broad claims and specific details makes your documentation valid and searchable. Without these traits, you run the risk of another inventor patenting the technology and losing the right to use your invention in its entirety. 

Elements of a Defensive Publication

While a defensive publication is not a patent, high-quality defensive publications are just as carefully crafted as patent applications. A well-developed defensive publication includes these elements to protect your intellectual property without going through the patenting process:

  • Abstract
  • Problem Statement
  • Known Solutions and Their Drawbacks
  • Novelty Statement
  • Implementation/Process Steps
  • Example Embodiment(s)
  • Supporting Figures and Images

14 Defensive Publication Mistakes

Considering only what you need to write (based on the list above) and not how you will write it is a dangerous habit. If the statement of novelty, process steps, example embodiments, or figures are confusing to the reader, your document is not doing its job. Your ownership of the invention could be less defensible if the idea and its execution are unclear.

Everyone has a different writing style. Even when putting together a functional technical document, one writer might describe steps in great detail, while another might rely heavily on diagrams. While both approaches are acceptable, as are many others, the writer must clearly present the information and leave no room for misinterpretation.

These seemingly harmless bad writing habits are costly defensive publication mistakes:

1. Misunderstanding the Audience

Before writing any document, especially a technical one with as much importance as an invention disclosure, you must have a clear understanding of who your audience is. Don’t assume they know more about your industry and invention than they really do. This can lead to misinterpretation of your documentation, which is a severe obstacle to protecting your invention. 

2. Disorganized Ideas

Clearly organized ideas help a reader understand what’s most important and how elements of your invention fit together. When the details of your invention are disorganized, you can confuse your readers and make it more difficult for them to identify the background, problem description, prior art, inventive idea, implementation, and steps for enablement. It’s also easier to lose sight of the balance between broad claims and specific details, which is essential for protecting your intellectual property and maximizing the value of your defensive publication. You may have redundant information, or leave out important elements of your invention.

3. First Person Narrative

Using a first-person perspective makes it harder for your reader to distinguish between the writer and intended users. When your audience doesn’t know if “we” means developers and engineers or users and customers, it’s hard for them to clearly grasp enablement. 

4. Preposition Misuse

Omitting or misusing a preposition can completely change the meaning of a phrase, which in turn changes how a reader will perceive a sentence and the overall idea you’re describing. This leads to confusion and can cause misinterpretation of the invention and points for enablement.

5. Subject and Verb Disagreement

Subject and verb agreement confirm whether the subject of a sentence is singular or plural. When the two elements don’t agree, it introduces ambiguity and can change the meaning of your description and the components of enablement. 

6. Storytelling

There is a place for telling the story of your invention. It may play a role in publicity or pitches to investors. However, creating an elaborate picture of the problem and your solution in your defensive publication presents too much irrelevant information. This limits the relevance and application of your invention. 

7. Incorrect Formatting

The accepted formatting of an invention disclosure helps writers include essential information and guides readers through the document. Incorrect formatting makes your description difficult to follow and prevents someone with basic knowledge of the art from understanding the process flow.

8. Passive Voice

The passive voice implies future events rather than invented capabilities as well as uncertainty, weakening your intellectual property rights. The reader may also have a difficult time identifying the subject of a sentence or passage.

9. Opinions

A defensive publication should be a factual, technical document. Some seemingly harmless adjectives and adverbs, such as obviously, unfortunately, and of course, betray the writer’s opinion. This is unprofessional and lessens credibility. 

10. Colloquial Language

Like storytelling, there is a time and place for describing your invention in plain terms. Your technical documentation is not one of those places. Keep your writing professional by replacing casual phrases that lead to confusion, misinterpretation, or mistranslation between languages. For example, use “manage” instead of “deal with” and “later” rather than “down the road.”

11. Copyrighted Information

If you’re attempting to protect your intellectual property with an invention disclosure, you know how valuable IP rights are. Don’t risk a lawsuit by using copyrighted names, text, or images without express written permission.

12. Unclear Figures

Figures and images give you the opportunity to show, rather than tell, your reader what your invention is. Illegible figures, such as those with dark colors or very small text, do not meet the requirement for showing enabling detail or an example embodiment.

13. Undeterminable Pronoun Referent

When you’re writing, you know exactly what “it” or “them” refer to. However, if you don’t clearly identify your subject first, your reader probably doesn’t know what these pronouns stand for. This leads to confusion and misunderstanding while making enabling details difficult to follow.  

14. Inconsistent Terminology

Throughout your defensive publication, use the same word for the same concept. For example, do not use “car” and “automobile” in your document to mean the exact same concept. This introduces confusion and can pose problems during searching and translation.

Overcoming Bad Writing Habits

Overcoming these common defensive publication mistakes is a matter of replacing them with new habits. Shift your mindset with these tips for stronger invention disclosures:

  • Think of your invention in the present tense. Explain not what your invention will do, but what it does to solve the problem.
  • Read your work out loud. If it sounds awkward to you, then it is probably confusing for a third party to read.
  • Have someone else proofread your work. After working on the same document for some time, we tend to miss our own mistakes.
  • Use a professional copy editor. Work with someone who can go beyond proofreading and help organize and clarify your ideas.
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