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IP Strategy

How Defensive Publishing Strengthens Your Patent Portfolio

Since the early 1980s, the number of patents granted on software-based inventions has increased by 1,900%, resulting in approximately 40,000 software-related patents issued annually. The frenzy behind this software patent glut needs to stop.

Part of the problem is that many software patents merely cover incremental improvements to core technologies, with varying degrees of value to the owner. Separate from the philosophical debate about whether patents that claim “abstract ideas” run counter to the spirit of our patent system (e.g., Alice v. CLS Bank), there’s a much more tangible argument against securing patents for intellectual property: It requires a large capital investment and often provides little or no strategic value or return on that investment.

Consider that the average cost to apply for and maintain a worldwide patent over its lifetime – factoring in filing fees, examination and grant costs, and annuities – is around $150,000. Obtaining exclusionary rights across a portfolio of technologies that have questionable value to the business can quickly become cost-prohibitive.

Companies seeking a more cost-effective alternative should consider defensive publishing, an intellectual property strategy used to prevent another party from obtaining a patent. By disclosing an enabling description of an invention to the public, the document becomes “prior art,” with a provable publication date and authenticity.

A defensive publication, therefore, can defeat the novelty of a subsequent patent application. For a few hundred dollars, a company can effectively secure freedom to operate, block a competitor’s patents from issuing, reduce unnecessary prosecution and filing expenses, and mitigate the risk of devaluing their foundational patents.

More importantly, defensive publication of invention disclosures, back files, product manuals, and the abandonment of provisional applications provides patent examiners with the ammunition required to combat questionable patent applications from non-practicing entities (NPEs).

Broad-based adoption of defensive publishing would also increase the overall quality of patents and, perhaps most importantly, reduce the leverage that NPEs have on various industry segments. Business software developer SAS, which has aggressively fought patent trolls, recently announced that it would convert 38 years of user documentation and technical papers to electronic form and provide it to

Deploying defensive publishing as part of a well-balanced IP portfolio management strategy not only serves the strategic interests of your company, but will also promote patent quality across your industry and the general economy.