A defensive publication, or defensive disclosure, is an intellectual property strategy used to prevent another party from obtaining a patent on a product, apparatus or method for instance. The strategy consists in disclosing an enabling description and/or drawing of the product, apparatus or method so that it enters the public domain and becomes prior art.[1] Therefore, the defensive publication of perhaps otherwise patentable information may work to defeat the novelty of a subsequent patent application.[2] Unintentional defensive publication by incidental disclosure can render intellectual property as prior art.[3]
One reason why companies decide to use defensive publication over patents is cost. In the United States, for example, to obtain a published patent application, one must incur at least filing fee, examination fee, search fees, and early publication fees (currently $530, minimum plus $300 for early publication), and meet the filing requirements for a proper patent application.
- "The defensive publication route is especially useful for innovations that do not warrant the high costs incurred in patent applications but to which scientists do want to retain access."[4]
See also
- Cloem, a company creating computer-generated variants of patent claims, which may potentially be defensively published
- IBM Technical Disclosure Bulletin
- Trade secret
- United States Defensive Publication (existing between April 1968 and May 8, 1985)
- United States Statutory Invention Registration (existing until 2013)
References
- ^ "FAQs". Defensive Publications. Archived from the original on 8 September 2015. Retrieved 8 December 2020.
- ^ Barrett, Bill (2003). "Defensive use of publications in an intellectual property strategy". Nature Biotechnology. 20 (2): 191–193. doi:10.1038/nbt0202-191. PMID 11821867.
[. . .] the successful defensive publication renders the competitor's invention obvious or lacking in novelty.
- ^ Huggins, John. "Copyrights, Designs and Intellectual Property". Hamradio.ME. Retrieved 27 October 2015.
- ^ S. Adams, V. Henson-Apollonio, "Defensive Publishing: A Strategy of Maintaining Intellectual Property as Public Goods" [1], USAID
Further reading
- Johnson, Justin P., Defensive Publishing by a Leading Firm (October 8, 2004). Available at SSRN: http://ssrn.com/abstract=606781 or doi:10.2139/ssrn.606781.
- Baker, Scott and Doug Lichtman and Claudio Mezzetti, Disclosure And Investment As Strategies In The Patent Race, University of Chicago Law School. 2000. (pdf)