Defensive publishing is a cost-effective method to protect technology without applying for patents. Publishing documents that establish your innovation as “prior art” in the public domain can decrease unnecessary patent expenses for innovations that have operational but non-commercial value to your organization. Publishing prior art also blocks competitors from obtaining a patent on technology described by the documents you’ve published.
What is Prior Art?
Prior art (state of the art or background art), in most systems of patent law, is constituted by all information that has been made available to the public in any form before a given date that might be relevant to a patent’s claims of originality. If an invention has been described in the prior art, a patent on that invention is not valid.To anticipate the subject-matter of a patent claim, prior art is generally expected to provide a description sufficient to inform an average worker in the field (or the person skilled in the art) of some subject matter falling within the scope of the claim.
What is a Defensive Publication?
Defensive publications, which are endorsed by the USPTO as an IP rights management tool, are documents that provide descriptions and artwork of a product, device or method so that it enters the public domain and becomes prior art. This powerful preemptive disclosure prevents other parties from obtaining a patent on the product, device or method. It enables the original inventor to ensure that they have access to their invention by preventing others from later making patent claims on it. It also means that they do not have to shoulder the cost of patent applications.
What are the benefits of publishing prior art?
Any document that describes a technology to the public can be added to the Prior Art Database – everything from user manuals, maintenance manuals, drawings, press releases and other marketing collateral, and archived back files of almost any kind.
The America Invents Act, the final provisions of which went into effect in March 2013, has redefined prior art for U.S. inventors. Under the law, defensive publishing immediately and permanently extinguishes patent rights, with the exception of a one-year grace period for inventors. Publishing prior art won’t provide exclusionary rights to the inventor, but it can significantly reduce future infringement risks while providing freedom to operate and protecting the value of foundational patents in a portfolio.