In this article we're going to discuss an alternative to getting a patent for your product or method called the defensive publication. The truth about getting patents is that it is a form of risk management for a company or individual. To give an example, a company that failed to get a patent may lose control of the main technology that the company uses to conduct business. It is also vulnerable to a lawsuit and strict licensing terms.
Because patents are so important to a company and its operation, many companies form what is called a license review board to determine the cost involved with obtaining a patent for the product or technology. If the board finds enough evidence to warrant obtaining a patent it then discloses its findings to the CEO of the company. However, there are going to be times where the cost and risk factor of trying to obtain a patent are too great to warrant going ahead with trying to get one.
In this case an alternative form of risk management should be sought. One of these alternatives commonly used by companies in this situation is called the defensive publication. This is used especially when the alternatives are limited or the patent process would be too difficult to prove. According to U.S. patent law, a printed publication with a publication date prior to what would have been the effective date of the patent could be used to invalidate that patent if claimed by another company.
This publication can be used as a defensive measure to describe whatever technology it has created. Once this publication is released, the competing company would have to consider this publication as prior art. The company releasing this publication is given a certain degree of protection. The company can use this publication as a shield against another company suing them for using this technology.
This will, in most cases, discourage the other company from going ahead with the lawsuit because of prior art laws. To qualify as this type of publication there are a number of things that have to exist. For one thing, the publication must have been available to the public in general. It must describe the technology specifically and the date of the publication must be before the date of the patent that was issued to the competing company. This involves two criteria which are accessibility and dissemination.
Accessibility is the issue of whether relevant members of the public could obtain the publication if they wanted to. If this is proven that they could have had access to the publication then there is no need to actually show them the publication. Just the fact that it existed and was accessible is enough. .
By: Michael Russell
