Defensive publication is the purposeful publication of an innovation creating prior art to block future patents on the same idea. The IP strategy isn’t new; many top patentees GE, IBM, HP, SIEMENS etc. have been using defensive publications alongside their patents to protect their IP for decades and increasingly smaller firms are starting to adopt the strategy.

Publish or patent?

In this post we review what the strategy is all about and why these companies do not simply patent all their innovations.

A patent can provide two key benefits

Freedom to operate once a patent application is published the innovation is no longer novel and therefore cannot be patented by anyone else.
Exclusive rights once a patent is granted the patentee can hold a monopoly on the right to make, use or sell the innovation or they can license these rights

A Defensive Publication secures similar freedom to operate as a published patent application, but it takes less staff specialist staff time, is published immediately and depending on where you choose to publish, it’s usually possible to publish anonymously.

Companies with an implemented Defensive Publication strategy will review the business case for new innovations and ask the question; is the expected value of the exclusive rights we may be able to obtain from a granted patent likely to outweigh the specialist staffs costs involved in drafting, obtaining and enforcing a patent?

If yes, patent > and aim for the exclusive rights.

If no, publish > and protect your freedom to operate at a minimal cost.

The following example illustrates a defensive publication used by patent examiners to block/restrict subsequent patent applications:

Research Disclosure* 471088, published anonymously, July 2003 -- "Method to increase power efficiency in a mixed GSM/UMTS network."

Illustration of a defensive publication being used by patent examiners to block / restrict subsequent patent applications

*Research Disclosure is a commercial defensive publication service

Factors to consider

An interview-based study on the usage of Defensive Publication strategy was published at the end of 2012. The interviewees listed the following scenarios as being relevant for defensive publication.

Innovation would be difficult to patent
Innovation relates to a product which is already well protected
Patent would be unprofitable
Publication chosen over secrecy
Patent costs too high
Innovation maybe soon be obsolete

Defensive Publication clearly isn’t the right protection option for every innovation but as demonstrated by the patenting power houses when used in combination with patent applications as part of wider IP strategy it can be an effective way to maintain freedom to operate at a low cost.

If you want to learn more you can ready the full study referenced above, watch this defensive publication strategy video or better yet sign up for Patexia’s webinar on the subject here.