Defensive publication
From Intellogist
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Defensive publication is an intellectual property strategy whose aim is to place details of an innovative product or process in the public domain as "non-patent prior art". The object is to prevent anybody from patenting the innovation in question. By publishing enabling details of a new product or process, the discloser ensures that any subsequent patent application (whether by the discloser himself or a third party) will fail for want of “novelty”. International Searching Authorities are required to search non-patent prior art sources on the PCT Minimum Documentation list.
Why disclose?
- The strategy of defensive publication is most commonly used to save the cost of a full patent application – principally the costs of legal services and specification (and translation, where a patent application is to be made in another country). If it appears unlikely that the innovation can itself be used to recoup the cost of patenting – through licensing, sale or direct exploitation – defensive publication may be the better commercial option.
- Where a company has a research and development department in house, its budgets may mean that not all innovations can be patented. For some innovations, defensive publication may suffice, ensuring that the originating company secures future use of those innovations in its own business.
- Defensive publication is increasingly employed for the public good to protect “open source” software and “traditional knowledge”, particularly of medicines and crops in developing countries. See Defensive publishing: a strategy for maintaining intellectual property as public goods: Stephen Adams and Victoria Henson-Apollonio
Publication
Defensive publication is markedly less demanding technically than applying for a patent. Nevertheless, evidentiary requirements vary between jurisdictions. Unless you understand exactly what evidence of publication is required by which tribunal, consider using a research disclosure service or appropriate academic journal (checking that the service or journal has PCT Minimum Documentation status) to publish your disclosure rather than publishing yourself in case your enabling disclosure inadvertently enables a third party to patent your innovation.
