• last updated : 20 April, 2023

Defensive Publication vs Patent

Category: Blog
Defensive Publication vs Patent

Defensive Publication vs Patent? Do you also have the same question in mind? Patents and technical disclosures are examples of intellectual property included in a comprehensive IP strategy. Both are legal ways to publish an invention. However, determining which strategy is best for a given technology necessitates understanding the distinctions between defensive publications and patents. 

What is a Defensive Publication? 

A defensive publication is a prior art database, industry publication, or academic journal that discloses an invention. Because the disclosure creates prior art, the ability to patent the invention is lost as it is no longer novel. Quality defensive publications contain the same level of technical detail as patent applications. This enables them to meet the enablement requirement while also thoroughly describing the technology’s applications, rather than just the technology itself. 

It is also possible to self-publish through a white paper, company website, or other publicly accessible platform. This, however, decreases the likelihood of a patent examiner discovering prior art. 

Defensive Publication vs Patent 

Defensive publications and patents have some similarities. Both have a place in a company’s intellectual property strategy. By making details of your technology available to patent examiners, they also reduce the chance of litigation and safeguard your freedom to operate. 

The distinctions between patent protection and defensive publication make defensive publication a viable strategy in some cases. An invention disclosure is a low-cost method of preventing others from patenting similar technology. If pursuing a patent is unlikely to yield a return on your investment, but you desire to be able to use the technology in the future, you may want to disclose it this way. Incremental innovation is one instance of this situation. If your company has a patent on a core technology, slight improvements might not be good enough to justify their own patents. If a competitor patents these improvements, you may lose your competitive edge. Defensive publishing prevents competitors from restricting your ability to innovate with their own patents. 

Technical disclosures generate prior art much faster than filing a patent application. They are also far less expensive than pursuing patent protection. Not only are the application fees for inclusion in a publication or database significantly lower than those for a patent, but there are no maintenance fees, so there’s no need to litigate to impose a patent. 

Of course, the features that make invention disclosures a strategic option can be harmful in some circumstances. Choosing defensive publication over patent protection means that your technology can be used in the manner you describe by any entity. You also restrict your ability to safeguard your own intellectual property with patents, preventing competitors from patenting similar processes or products. 

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