Defensive Publishing

Abstract

Defensive publishing is an intellectual property strategy that can prevent any party, including competitors or non-practicing entities, from obtaining a patent rendered either not novel or obvious from patent applications with a priority date later than its publication date. A publicly disclosed description of an invention becomes available as prior art as of its publication date. In the U.S., when an inventor publishes his or her invention, the one-year grace period ensures that the inventor’s patent rights are not immediately extinguished. Grace period provisions differ by country, and, where available, are often six months or one year. After this time, the invention will enter the public domain. Defensive publication should be considered when the cost of patenting outweighs the benefits of a monopoly, i.e. the exclusive rights provided by a patent. In contrast to attempting to maintain an invention as a trade secret, defensive publications will bar the ability for competitors to obtain a patent. IP.com’s Prior Art Database (PAD) is the world’s first and largest online prior art disclosure service, and has been in existence since 2000. The database is a multilingual source of unique and rare technical disclosures and other non-patent literature, and is publicly available for keyword or concept-based searching at priorart. ip.com. It is also searchable within our patent search and analytics platform, InnovationQ. Publishing into the database is simple and our publication vouchers are affordably priced, with volume discounts available. A single voucher covers the first 17 pages of a document, so you never pay high fees on a per page or word count basis. After documents are indexed in our database, they are notarized. Most submissions are processed and published within the same day, often within minutes, unless there is a problem encountered during processing, as we strive to ensure you get the earliest applicable prior art date possible. Defensive publishing is an intellectual property strategy that can prevent any party, including competitors or non-practicing entities, from obtaining a patent rendered either not novel or obvious from patent applications with a priority date later than its publication date. A publicly disclosed description of an invention becomes available as prior art as of its publication date. A solid defensive publication strategy can help reduce overall patent filing costs, reduce infringement risk profiles, and defend against overly broad asserted patents that were filed subsequent to the defensive publication without an earlier priority claim. Defensive publication may be used around a core previously patented technology to prevent erosion of its licensing potential by precluding others from obtaining rights to subsequently developed related technologies, without the need to incur the cost of filing additional patent applications. Defensive publication may be particularly useful for software or business method related inventions, to preclude others from obtaining broad patents, because although such patent applications may be subject to rejection as unpatentable subject matter, i.e., an abstract idea, a rejection under the prior art poses an additional hurdle to patentability that is less subjective. Incorporating defensive publication into our leading Prior Art Database as part of your intellectual property strategy will help ensure that your inventions are visible, searchable, and applicable as prior art.