Smart defensive publishing

For innovative companies there are multiple options when it comes to manage intellectual property. Some inventions may take the patent route, other will remain in the company as trade secrets, other will be disclosed and published to create prior art and prevent third parties from getting a patent for the same or similar innovation.

This latter strategy is often referred as defensive publishing and it is not trivial neither cheap to execute in a robust and undisputable way.

In a defensive publication, inventors disclose details about their innovation to the public, thereby preserving their freedom to use the innovation by preventing others from patenting it. The link between defensive publication and patenting is the requirement for novelty in a patent application. Since a defensive publication makes a description of the innovation available publicly, the innovation can no longer be called new and thus patent-worthy.

Organizations that want to take the defensive publication route should follow certain guidelines on how they publish. Five areas for special consideration are form, accessibility, timeliness, unambiguous publication date, and the rights arising from a disclosure.

Attention paid to each of these areas can determine the difference between a well or poorly prepared publication for the purposes of it serving as a defensive publication.