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Patent Filing & Litigation

Defensive Publication vs Patent: Which Strategy Is Right for You?

By March 27, 2021June 3rd, 2021No Comments

A comprehensive IP strategy includes multiple types of intellectual property, including patents and technical disclosures. Both are valid methods of publishing an invention. However, choosing which strategy is right for a specific technology requires understanding the differences between defensive publications and patents. 

What is a Defensive Publication?

A defensive publication is an invention disclosure in a prior art database, academic journal, or industry publication. The disclosure creates prior art and eliminates the ability to patent the invention because it is no longer novel. Quality defensive publications include the same detailed technical information as patent applications. This allows them to meet the enablement requirement and thoroughly describe applications of the technology, not just the technology itself. 

Self-publishing via a company website, white paper, or other publicly available platform is also an option. However, this reduces the likelihood of a patent examiner finding the prior art. 

Defensive Publication vs Patent

There are similarities between defensive publications and patents. Both have their place in a company’s IP strategy. They also reduce the risk of litigation and protect your freedom to operate by making details of your technology available to patent examiners. 

The differences between defensive publication and patent protection are what make defensive publishing a sound strategy in some cases. An invention disclosure is a cost-effective way to keep other entities from patenting a similar technology. You may want to disclose an invention this way if pursuing a patent is unlikely to offer a return on investment but you still want to be able to use the technology moving forward. One example of this situation is incremental innovation. If your organization holds a patent for a core technology, any small improvements may not be worth their own patents. However, if a competitor was to patent these improvements, you could lose your competitive advantage. Defensive publishing keeps competitors from limiting your ability to innovate with patents of their own. 

Technical disclosures are a much faster way of creating prior art than applying for a patent. They’re also much more affordable than pursuing patent protection. Not only are application fees considerably less for inclusion in a database or publication than a patent, there are no maintenance fees, and no need to litigate to enforce a patent. 

Of course, the characteristics that make invention disclosures a strategic option can be detrimental in some scenarios. Choosing defensive publishing over patenting means that any entity can use your technology in the way you describe. You also not only keep competitors from patenting similar products or processes, but limit your ability to protect your own intellectual property with patents.