Defensive Publishing Overview
Patenting is extremely expensive and most companies have more innovative ideas than budgeted patent resources. Who can afford to patent everything? On the other hand, who can afford to let competitors patent technology used in your products and services? Worse yet, how do you know, years in advance, which patentable ideas you will need for your products and services? Defensive publishing is a low cost way to prevent competitors from obtaining patents and protect your freedom to practice.
Technical Disclosures
Patents are incredibly useful tools in that they give the inventor the right to exclude others from making, using or selling the patented invention. However, this exclusive right must be enforced. If someone is using an invention for which you have a patent, you can sue for infringement to reclaim damages, as well as force the offending party to stop. Unless you initiate the infringement proceedings (or the threat of infringement proceedings), there is nothing to make the offending party stop using your innovation. In essence, patents only have power if you are willing to stand up in court to defend them.
The problem is that obtaining patents is not a trivial process. Legal fees, filing fees, maintenance fees, and lost time by your R&D staff can be quite costly. Spending this kind of money on a powerful innovation that can return hundreds or thousands of times the investment is clearly worth it. Yet, only a small portion of the items from a typical invention review qualify as such. More often, the majority of ideas that result from an invention review are good ideas that, for one reason or another, do not end up patented.
Why?
Typically, there are a number of inventions on which you may already have partial patent protection. Inventions that improve upon an existing patented invention are good examples of this. Another reason you may not wish to obtain patent protection on good ideas, is that you don't expect to ever gain back the money that would be spent pursuing the patent. This is highly typical for inventions that improve the operation of some aspect of your business, but is not part of your general business strategy. (A computer chip manufacturer that finds a better way of packaging would be a good example. Packaging sales are not part of the core business, and most likely patents in this area would never be pursued.)
So what happens to the innovation I don't patent?
Typically, nothing. You are free to use your invention without a patent ... until someone else patents the idea. That's when the problem occurs. At this point, they could force you into paying licensing fees, or to stop using the innovation altogether. In essence, forcing you to stop using an idea you had first, but never patented.
If I had the idea first, doesn't that give me the right to use it?
Unfortunately, having the idea first doesn't do anything for you. The only way to prevent another patent from issuing, or defeating one that has already issued, is by being able to prove not only that the idea already existed, but that it was available to the public as well. This is where technical disclosure comes in. Innovation you do not patent is at risk of being patented by others. Publishing that innovation establishes a clear trail of evidence that you had this idea, and made it available to the public. Therefore, it should be considered "general knowledge" by the patent examiners, and not be allowed to be patented. In effect, allowing you to retain your right to use your own innovation, without the hassle and expense of obtaining patent protection.
Here's how technical disclosure works.
One on this year's list caught our attention. Conor Madigan, PhD, Cofounder and CEO of Kateeva a company that, according to a recent article in Technology Review, has devised "a method for depositing the light-emitting organic materials with inkjet printers and a micro-dryer called a T Jet (for thermal jet) along with proprietary inks that effectively will let manufacturers employ Gen 8.5 and larger substrates – which measure more than 6 feet a side – to produce OLEDs."
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