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IP Strategy

7 Components to a Well-Developed Defensive Publication

The human ability to constantly churn creativity, attack problems with inventive solutions, and even find solutions before we exactly identify the problem, is astounding. Brilliant concepts abound, but they must be captured. The best can be monetized. Above all, the intellectual property must be protected. A patent is the best way to do that. The novel idea receives the blessing of the USPTO (in the United States) and the owner receives exclusive rights to market and financially benefit from that invention. But not every idea can evolve into a patent.

Patenting Barriers

Cost is an obvious hurdle; perhaps more so for a company with a volume of work than for an independent inventor with one or two designs. The patenting process pulls money for attorney fees (do not attempt to navigate the laws without professional support), application fees (provisional and/or complete), filing fees, and maintenance fees. If there are any weak spots in the process such as soft due diligence, poor writing, bad timing, etc. litigation expenses might also arise. The price of pursuit is also reflective of complexity. Patenting a new design for a doorstop is likely to cost thousands of dollars less than a scheme for a new virtual reality application costs. With fees and complexity in mind, a single patent application can absorb anywhere from $5,000 to $16,000* and up. Any litigating action turns that tens-of-thousands into pocket change.

Time is another obstacle. A smooth patenting process might complete in three years. It is literally a race to be the first inventor to file, get the IP patented, and be the first to market.

Public and private entities have entire legal and subject matter expert review teams dedicated to determining the patentability of an invention. Because of cost, questions of viability, or time constraints, only a relative few are granted that status. Where does the rest of the IP go?

Defensive Publication Openings

The rest of the IP goes into defensive publication. The absence of a patent does not mean the absence of protection.  Defensive publishing places the innovation in the public domain. It is a cost-effective intellectual property strategy consisting of disclosing aspects of the invention, so it becomes prior art, precluding others from obtaining a patent on your invention. In addition, when an invention disclosure is submitted for publishing, the content becomes public in a matter of days, if not hours, rather than years. For the consistent price of a few hundred dollars, a published technical disclosure provides tactics to:

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

Published technical disclosures, used in conjunction with patents, strengthen an IP portfolio. And, developing a defensive publication is relatively simple.

Defensive Publication Development

An effective defensive publication presents the novel idea in a concise manner, provides enough information to protect it, illustrates enablement, and validates that it is useful and non-obvious. The document is a summary of the invention that includes the components listed below.

  1. Abstract: In 1-3 sentences, state the disclosed solution, system, or method.
  2. Problem Statement: Describe the motivation for the invention. What is broken? Where is the opportunity? Assume that the reader has basic working knowledge of the art. It is not necessary to provide extended background information beyond what is needed to explain the problem.
  3. Known Solutions & Drawbacks: Describe current approaches to solving the problem, existing methods, etc. Briefly state why the current solutions are ineffective, need improvement, etc. It is not necessary to list all prior art here.
  4. Novelty Statement: In a few sentences, briefly state the novel contribution to knowledge.
  5. Implementation/Process Steps: A reader with basic knowledge in the art should be able to review and repeat a series of steps to an end that supports the statement of novelty and reasonable applicability. This frames your argument for enablement.
  6. Example Embodiment: Give 1-3 examples of the novel concept in practice. Show how implementation solves the problem. This supports enablement and clarifies the purpose and usefulness of the invention.
  7. Supporting Figures/Images: To avoid any copyright infringement, use original figures. Use a common image file (i.e., .png, .jpg) embedded into the body of the document. Make sure that the figures are a reasonable size — easily legible without being huge.

In terms of a successful intellectual property strategy, defensive publication is equally valuable to patenting.

*The Cost of Obtaining a Patent in the US. Accessed May 3, 2018.