Sep 25, 2022Legal
Defensive Publication vs Patent What is Best for a Company's IP Strategy?


We often see discussions around the web and various statistics about “worthless” patents. However, as patent analysts investigate them, they conclude that the problem is that they are too narrow to block the competition rather than being actually worthless. In this way, most patents result being more technical than conceptual, and the competition exploits this fact. However, what happens when your company determines that the invention will most likely not return the cost of an eventual patent, but you still want to use that technology? In this case, a defensive publication might be the answer.

A defensive publication is an act of disclosing the invention in a prior art database, academic journal, or scientific magazine. This publication creates a prior art that ensures that no other competitor may patent your invention. By providing thorough details as well as the applications of the invention, as done in a good patent application, you will establish a quality publication. An alternative would be to publish the invention on your website or whitepaper;however, this will reduce the chances of being found by a patent examiner. Ifsomeone gets the patent, it needs to be challenged in court.

In order to create a comprehensive IP strategy and make use of defensive publications, you need to understand the differences between them and the patents.  Defensive publishing is quick and cost-effective compared to patents since there are also no maintenance fees. However, a defensive publication means that your competition will be well aware of your technology, and there is no way to keep them from using it, resulting in you losing the competitive edge Furthermore, if you will eventually improve on the process and eventually want to patent your technologies, it will be nearly impossible. In this way, patents are the optimal choice when it comes to companies that are first-time applicants, as well as novel technologies.In the cases where you make small improvements over a patented technology, and they are not worth patenting, you may go for defensive publication and still keep the benefits of the original patent.

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