Defensive Publishing

Intellectual property, particularly patents, have become vital for the growth of a company, and, in general, the global economy. Patents have become important tool for company’s goal of profit maximizing and these companies are filing patents at an increasing rate.

However, there may be some reasons why a company may wish to avoid patenting a given invention, such as cost, or the fact that the invention may not meet the patentability criteria. An alternative that is sometimes used by businesses is “defensive publishing” or “technical disclosure”. In this article, we will be focusing on need and merits of defensive publishing.

Defensive publishing involves disclosing an invention to the public in order to ensure that no one else can patent it. It may be understood that this stands in sharp contrast to keeping it as a trade secret. It is basically a strategy disclosing an enabling description of a technology to the public, in order to establish the innovation as prior art in the public. This provides some degree of freedom to operate for all. Defensive publication is not generally done for a major breakthrough in technology or for a core technological invention that is likely to be central to the strength of an enterprise, however minor improvements to a product or technology are often good candidates for defensive publishing.

It is often required that the disclosure should be done in a well-recognized technical journal or other publication that is likely to be consulted by patent examiners when examining future patent applications, for example, journals that are included as part of the PCT minimum documentation for International Search Authorities. Some journals devoted exclusively to defensive publishing have become respected sources of technical information.

There are many advantages of defensive publishing. First of all, it is cheap. There are no administrative fees which otherwise would occur for filing for patent protection at a patent office, or nominating a patent attorney. It is a fast method because companies simply have to send the description of their invention to a public domain where it is published. There are no further examinations of the invention.

In the next article, we will be discussing about the need and advantages of “technical disclosures”.

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