FAQ for Defensive Publishing

What is defensive publishing? - Defensive publishing is to disclose your invention to the public domain, such that no one could apply a patent for your invention.

When to use defensive publishing? - The rule of thumb is (1) if you do not want to file a patent for your invention for whatever reasons AND (2) you do not want to keep the invention as a trade secret for whatever reasons, then you should use defensive publishing.

Why should I not file patent applications for all of my inventions? – Filing a patent application is expensive. The usual price for patent attorney fee in drafting a patent is between US$ 5,000 to US$ 10,000. Then you also need to add official fee charged by a patent office. This can also be another US$ 1,000. When the patent application moves to prosecution stage (answering a patent examiner’s question or appealing a patent examiner’s reject), you may be required to spend another US$ 5,000 easily.

Also, not all inventions can be granted with a patent. If the prior-arts are very similar to your invention, you invention may not satisfy the novelty and inventive step requirements.

Why should I not keep all of my inventions as trade secrets? – If your competitor files a patent application, which is almost identical to your trade secrets, your competitor could still be awarded with a patent. This is because your trade secret is not considered as a prior-art. Please be noted that different jurisdictions have different definitions of trade secret. It is very possible that your undisclosed invention will not be considered as a trade secret while cannot be used as a prior-art in the court.

How to use defensive publishing to confuse my competitors? - To mislead your competitor on your product development plan, you can publish inventions that you will not commercialize. Your competitors may think that you are going to move to a new market. They may throw resources to try to compete against you in that new market. This make your competitors stretch their resources thin and fight many battles at the same time.

You can also publish without disclosing your true identity. Your competitors may not pay attention to your invention because it is difficult for them to link the publication to you. Then, you can have more lead time.

Can I publish myself? - Yes. As long as your publication is accessible by the public, you satisfy the prior-art requirement. However, your publication date can be easily challenged by your opponent if there is no third-party proof. For example, you posted your publication at your company website but no search engine crawled the publication. Then, how can you prove to the court the publishing date that of your publication?

What to look for from a defensive publishing vendor? -To ease the publication hassle, a few companies, like IP.com and Research Disclosure, could do the leg work for you. There are a few things that you should look for in deciding the suitable defensive publication vendor. (1) Speed - you want to publish you work instantly without any delay. A publication delay of one day means your competitor has one more day to file a patent application. (2) Price - it is almost 4 decades after the birth of Internet. It should not cost more than US$50 to publish a document because publication is not restricted to print medium anymore. (3) Accessibility- if a patent examiner can locate your publication, the patent examiner can decide easily to reject your competitor's patent application if it is similar to your idea disclosed in your publication. If your competitor can access your publications, they may decide not to compete against you directly.