• last updated : 20 April, 2023

7 Elements of an Effective Defensive Publication

Category: Blog
effective defensive publication

What is a Defensive Publication? 

An effective defensive publication is just what it sounds like: the publication of a disclosure that does not provide the publisher with patent protection but does offer defensive benefits, such as the formation of prior art against others as of the date of publication. 

How to Draft a Defensive Publication? 

The following text contains seven elements of an effective defensive publication. 

The human ability to constantly churn out creativity, attack problems with novel solutions, and even come up with solutions before identifying the problem is astounding. Brilliant ideas are all around us, but they must be recorded. Moreover, the best are the ones that are monetizable. Above all, intellectual property must be safeguarded. In general, a patent is the most effective way to accomplish this. 

The novel idea is approved by the USPTO (in the United States), and the owner obtains exclusive rights to market and profit from the invention. However, not every idea can become a patent. 

Patent Limitations 

Cost is an obvious barrier, perhaps more so for a large company than for an individual inventor with one or two designs. The patenting process requires money for attorney fees, provisional and/or complete application fees, filing fees, and maintenance fees. If there are any flaws in the process, such as poor due diligence, poor timing, poor writing, and so on, litigation costs may be incurred. The cost of pursuit reflects complexity as well. Patenting a design concept for a doorstop is likely to be thousands of dollars less expensive than developing a new virtual reality application. Depending on fees and complexity, a single patent application can cost anywhere from $5,000 to $16,000*. Any legal action reduces tens of thousands of dollars to pennies. 

Another barrier is time. All things considered; a smooth patenting process could take three years. It’s a race to be the very first inventor to file, get the intellectual property patented, and be first to market. 

Both private and public organizations have entire subject matter and legal expert review teams entirely devoted to determining an invention’s patentability. Only a select few are granted that status due to cost, viability, or time constraints. What happens to the rest of the IP? 

Opportunities for Defensive Publication 

The remaining IP goes into defensive publication. The lack of a patent does not imply a lack of protection. Defensive publishing makes the innovations available to the public. It is a low-cost intellectual property strategy that involves disclosing components of the invention so that it becomes prior art, preventing others from patenting your invention. Furthermore, when an invention disclosure is submitted for publication, the content is made public in days, if not hours, rather than years. A published technical disclosure, for a consistent price of a few hundred dollars, provides tactics to: 

  • Ensure operational freedom 
  • Prevent the issuance of a competitor’s patent 
  • Reduce the cost of prosecution and filing 
  • Prevent others from constructing “picket fences” around existing patents 

Published technical disclosures, when combined with patents, help to strengthen an IP portfolio. Creating a defensive publication is also relatively simple. 

Developing an Effective Defensive Publication

An effective defensive publication concisely presents the novel idea, provides sufficient information to protect it, demonstrates enablement, and affirms that it is useful and non-obvious. The document is a summary of the invention, which includes the following components: 

  1. Abstract: Specify the disclosed solution, method, or system in 1-3 sentences. 
  2. Problem Statement: Describe the invention’s motivation. What is the problem? Where can I find the opportunity? Assume the reader has a basic understanding of the art. It is not required to provide more background information than is required to describe the problem. 
  3. Background and Known Solutions: Describe current methodologies for addressing the problem, existing methods, and so on. Explain briefly why the existing solutions are ineffective or need to be improved. It is not required to list all prior art here. 
  4. Novelty Statement: Briefly describe the novel contribution to knowledge in a few sentences. 
  5. Implementation: A reader with a basic understanding of the art should be capable of reviewing and replicating a series of steps to support the statement of novelty and reasonable practicability. This helps frame your argument for enablement. 
  6. Embodiment of Example: Give at least three examples of the novel concept in action. Show how the solution is implemented. This promotes enablement and clarifies the invention’s purpose and utility. 
  7. Supporting Images/Figures: Use original figures to avoid copyright infringement. Use a common image file (.png or.jpg) embedded in the body of the document. Make sure the figures are of a decent size—easily legible but not too large. 

Defensive publication is just as important as patenting in terms of an effective intellectual property strategy. 

How Can We Assist with a Novelty Search?

XLSCOUT put the use of reinforcement learning to its AI-based Novelty Checker tool to get quality prior art search/patentability search reports in just 10 minutes. The Novelty Checker uses reinforcement learning to filter the noise from the prior art by pulling up the relevant results on top of the list. To be precise, it assists in conducting a novelty/patentability search to help you ensure that your innovation is unique. By selecting a few relevant and non-relevant results, users can apply reinforcement learning to the result set. The system takes the user’s feedback and then learns from it. Then it re-ranks the results by bringing the quality results to the top and sending the noise to the bottom. 

Without reinforcement learning, users go through hundreds of results manually. By applying reinforcement learning, users can skip going through the non-relevant results. Users can apply reinforcement multiple times to a result set according to their different requirements/ criteria. They can then view the Top-10 or Top-20 results for each criterion to perform an analysis for idea validation. 

Users can quickly generate an automated novelty and patentability search report by selecting these Top-10 or 20 results. Search reports from Novelty Checker include a good list of results. In addition, key features of the invention are mapped with relevant text to facilitate quick decision making.

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