To be approved for patenting, an idea must be new, useful, and non-obvious. In terms of IP strategy, you can use the “new” criterion to your advantage. Defensive publishing, i.e., putting a description of your idea in the public domain as prior art, removes the “new” status anyone else could claim for the idea and prevents competitors from obtaining a patent on your innovation. In contrast to keeping your invention a trade secret, defensive publishing gives it away so no one else can patent it. Here are some key benefits of defensively publishing your technical disclosures in a prior art database.
1. It’s Cost Effective
Applying for a patent can be risky. It takes time and money—a lot of money—and there are no guarantees. In contrast, defensive publishing is a quick, affordable, and sure way to protect your intellectual property from being patented away from you or infringed upon by others.
So consider proactively publishing a technical disclosure when the costs of obtaining a patent outweigh the benefits of the exclusive rights you’d get from a patent. That is not to devalue the patent system; however, if you have intellectual property that is not fully developed, is a supplemental idea, or at the moment is not the focus of your organization, it is better to let that idea live as discoverable prior art than rest in a dead file somewhere.
If you’ve already patented a technology that’s at the core of your innovation, defensive publishing can prevent its licensing potential from eroding by keeping competitors from filing for rights surrounding future innovations related to your IP. It also lowers the potential for patent prosecution costs.
2. It Mitigates Risk
When it comes to protecting your freedom to operate and lowering your litigation risk profile, published technical disclosures can be your best defense not only by the content, but also by the date on which the disclosure was published. Technical disclosures dramatically increase the odds that patent examiners will find and cite your prior art, which makes your invention discoverable and defensible.
Published technical disclosures, used together with patents, strengthen your IP portfolio and protect your company’s freedom to operate—while keeping your competitors from testing, producing, or commercializing a product that infringes upon your publication.
3. It Defends Patents
Defensive publication is especially useful for software and business inventions. Companies commonly obtain wide-ranging patents in these fields, and defensive publishing prevents competitors from filing overly broad claims after your defensive publication if they don’t have an earlier priority date claim.
That’s because published prior art is a huge obstacle to the patentability of a related idea, and rejection on the basis of prior art is less subjective than a patent application rejection based on unpatentable subject matter like an abstract idea or concept.
4. It’s Versatile
How you implement defensive publishing depends on where your soon-to-be prior art occurs in the intellectual property life cycle. For example, you can publish:
- A technical disclosure for previously unreleased intellectual property, and the time to consider doing so would be during the invention review as well as the patent application and prosecution process.
- Technical disclosures for technology previously released in a public, but informal manner—like your company website or a little-known database—to make it more visible and accessible to patent examiners.
- Strategic technical disclosures for specific tactics uncovered in a technology or business review.
Wherever your innovation lands in the intellectual property life cycle, defensive publishing is a valuable IP strategy. Entering your idea in the public domain is an efficient and cost-effective use of your resources. A simple upload process can keep your innovation’s success yours.