On the Green Patent Blog, covering intellectual property issues in clean technology, patent attorney Eric Lane follows up that article with a post headlined "More on Gratis Greentech: A Proposal for Expanding the Eco-Patent Commons" where he writes:

Whether or not you agree with her argument about issued patents, her idea of adding invention disclosures to the Commons would almost certainly benefit the initiative and its participants by increasing the value and utility of the available green technology. Of course, no independent or targeted donations to the Commons would be necessary because enabled invention disclosures are by definition in the public domain and available to everyone. Instead, to make the technology available to greentech firms, it would just need to be made accessible via the Commons. Broadly, Cronin’s idea could be implemented in one of three ways. Either companies who publish environmentally-beneficial technology in these disclosures could provide the publication information or citations to the Commons, the Commons itself could monitor the disclosure publications, or the publications could alert the Commons of relevant published disclosures. However it’s done, I can’t argue with increasing green idea and technology sharing.

Defensive Publishing denotes the disclosure of an invention with the purpose of creating prior art, and thus to prevent the granting of a patent. Regarding a worldwide initiative to "promote the progress" in the interests of the global environment, as envisioned by the the Eco-Patent Commons--beyond patents--including innovation and inventions not before patented, one must consider the different effects of "prior art" in various patent jurisdictions around the world.

In a  recently published Working Paper titled "Alternatives to the Patent Arms Race: An Empirical Study of Defensive Publishing", Joachim Henkel and Stephanie Pangerl note the differences between the European Patent Convention and US patent law.

US patent law is somewhat more restrictive in its definition of state of the art by excluding from patentability only those inventions that were “known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for patent” (US Patent Act, Section 102a). Public use in Europe would thus not be sufficient to establish prior art in the US. In addition, use or description of the invention must have taken place before the invention by the applicant or, as Section 102.b specifies, one year or more before filing of the application. This “first-to-invent” rule has an ambiguous effect on the attractiveness of defensive publishing. On the one hand, a DP may not pre-empt a patent application if the latter is filed less than 12 months after the DP and if it claims an earlier date of invention. In such a case, a DP might even trigger a competitor’s patent application. On the other hand, a DP can help to establish priority for an inventor, who maintains the option to file for a patent within the following year.

Consistent with the objectives of the Eco-Patent Commons, any similar system of technical disclosure publication should go beyond existing defensive publishing strategies to include a legally binding waiver of any option to file for a patent within the year following such publication.

We'd propose a definitive publication system for technical disclosures of eco-friendly innovations that would effectively relinquish all rights of the publisher to apply for a patent of the invention disclosed, anywhere in the world, anytime in the future.

Method to use laptop generated heat for 'aromatherapy'

Often, certain smells can stimulate work productivity. Motivation and Healing by smell is a very common practice and long time tradition. How nice would be to be stimulated by the scent of Chocolate or a Coffee without have to digest it? Since one's convenience is sought after as a top priority in today's society, it is only fitting that it be addressed in respect to the integration of today's technology and the common practices or classic traditions of aromatherapy. 'Aromatherapy' via a fragrance gel/oil and your laptop's generated heat may be all you need to complete your daily tasks list more efficiently. This approach can result in enhance work experience and increased productivity.

Until that innovation finds its way into an IBM laptop of the future, technology bloggers should work on developing zen habits for haiku productivity.

Flexible, controllable technical disclosures

Anonymity - Published technical disclosures have several unique advantages relative to other publications. For example, unlike conventional publications, disclosures can be published anonymously, allowing an author to safely disclose information that might otherwise be useful to a competitor's intelligence function or that could be offensive to a business partner. Clearly, certain instances of the customer/supplier control tactics might be quite problematic if your publication could be linked back to you.

Speed - Another advantage of the published technical disclosure is that it can be published extremely rapidly (relative to peer review publications). In fact, technical disclosures can be published in minutes, as opposed to weeks or months. Every day counts in matters pertaining to publication of inventions and patentable technology, since the outcome of patent prosecution and interference actions often depends on differences of days or weeks.

Format Flexibility - Even the formats of published technical disclosures can vary significantly, depending on the particular goals of the author and the complexity of the disclosed technology. The length of disclosures ranges widely, and many can be found that are less than a page long although some are many pages. A typical disclosure is one or two pages in length and often contains nothing other than a title, an abstract, and a description of the invention, although it may also contain graphs, chemical structures, process charts, citations, tables of data, etc.

Content Control - Finally, since they are not subjected to peer or editorial review, the author has full control in determining the content. This should be used to your advantage in your writing. For example, you can choose which pieces of an invention to disclose and which to keep secret. Or you can provide market information regarding the potential value of the invention if your purpose is to advertise your pending patent. You can choose your context and citations based on how you want readers to think about your technology, or you can suggest wide ranges of applications. It all depends on your goals in writing the disclosure, as the next section describes.

Technical disclosures fall into one of three general categories, based on the goal behind the disclosure:

a) Impacting future patentability of an invention via anticipation or lack
of novelty
b) Impacting future patentability of an invention via obviousness
c) Not aimed at impacting patentability (for example, disclosures aimed at
promoting technology for licensing)

a) Impacting patentability via anticipation

In order for a publication to anticipate an invention, the publication must be "enabled" and must describe the exact same invention. But what is enablement? For your disclosure to be considered "enabled," it must describe the invention in sufficient detail to enable a person having ordinary skill in the art to carry out the invention without undue experimentation.

To provide enablement, certain characteristic content is usually included in a technical disclosure. For a composition of matter invention, writers often include relevant synthetic procedures, formulas, equations, experimental conditions, compositions, etc. For a method or process invention, it is often useful to include flow charts, diagrams, or chemical equations. A disclosure describing a machine invention will usually contain diagrams and figures showing the essential elements of the invention. An article of manufacture invention will normally contain figures of essential elements. In lieu of including these items, it is permissible to include citations to these enabling items if they exist in other publications.

Generally, there is no compelling reason to publish this type of disclosure with full authorship. Indeed there are reasons to argue in favor of anonymous publication, including the possibility of straining important business relationships if the disclosure catches the attention of customers or suppliers, and the possibility of facilitating competitive intelligence against your company.

b) Impacting patentability via obviousness

A patent will be rejected if prior art makes the invention obvious. The wording of section 103 of Title 35, United States Code, is typical, indicating that a patent should not be issued "... if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains..." Disclosures aimed at an obviousness rejection are the most common type. A patent examiner can combine multiple prior art references to arrive at a rejection based on obviousness. Therefore, brief disclosures that do not contain a lot of detail, and are not enabled, can still be effective in preventing a future patent. The possibility of an obviousness rejection gives rise to many short technical disclosures that are little more than a brief description of an idea. However, patent rejections based on obviousness may be somewhat easier to

Solving Business Problems and Managing Risk with Technical Disclosures defeat than those based on novelty. The reason for this is that in the case of obviousness rejections, certain secondary considerations can be taken into account to demonstrate non-obviousness. These secondary considerations include indications that others have previously failed to solve the problem solved by the invention; the invention solves an unrecognized or otherwise insoluble problem; the invention enjoys rapid commercial success; the invention solves prior inoperability; or the invention solves a problem in a way that is contrary to the prior art's teaching.

Thus, it is fair to say that in terms of potential for preventing a patent, a more detailed disclosure is generally better. Nevertheless, the extra effort involved in writing a fully enabled disclosure and the additional amount of information disclosed to competitors must be carefully weighed against the benefit. Since an examiner can combine multiple references to arrive at an obviousness rejection, it can be beneficial to include references and/or citations in your disclosure to increase the likelihood of an examiner finding related prior art. However, this is far from being a requirement, since the examiner may combine your disclosure with prior art you don't reference, and in ways you can't currently imagine.

As with disclosures aimed at impacting novelty, there is generally no compelling reason to publish this type of disclosure non-anonymously.

c) Not aimed at patentability

Many technical disclosures are published that are not aimed at preventing future patents by others. Goals of disclosures that fall into this category include promotion of licensable technology, luring competitors into adopting your patent pending or patented technology, or promotion of a technical standard. Due to the diverse nature of disclosures in this category, it is not possible to provide guidelines on format or style, since the specific goals and subject matter will dictate the appropriate format and content.

Clearly, if the goal is related to overt promotion of technology for licensing, it is important to publish non-anonymously and include contact information in the appropriate bibliographic fields during the publication process. In this sort of situation, it is also important to use an industry-standard lexicon to help interested searchers find your disclosure. For the same reason, it is useful to include references to appropriate categories and/or product names.

For our purposes, the invention review process represents an organization's work process for assessing what should be done with new inventions and defining the scope of any patent application. It is typical for an IP management team (with input from appropriate R&D, business, and legal management) to handle this work process. It is in this domain that a clear understanding of the power of technical disclosure can save hundreds of thousands (or even millions) of dollars in fees associated with patenting technology that you might eventually discover is of marginal or no value. Retain your right to use your non-patented innovation At the time of invention review, you have some tough choices to make. The prohibitive cost of obtaining patents will force you into separating innovation between those which are deemed to be critical to your business and those which are not. Resources are limited - you have to make sure you fight the right fight!

Nevertheless, you have to be careful. Although the innovation you don't patent is deemed non-critical to the operation of your business, it doesn't mean that it wouldn't cause inconvenience and expense if you were prevented from using these inventions due to a competitor's patent. If a competitor obtains a patent on an innovation you failed to patent, you have three options. You can try to invalidate the patent, which will lead to a costly trial (in terms of both time and money). You can continue to use the innovation (and pay licensing fees). Or, you can devote time and money into developing ways to work around the patent.

The far simpler and more cost effective way is to prevent a competitor from obtaining a patent in the first place. At the time of your invention review, release your non-critical innovations to the public via a technical disclosure. This will establish your innovation as public domain, and prevent others from obtaining patents that can block your use.

When trying to decided whether to patent or publish, there is one highly effective question that can help you decide which is the better course: "If someone were to infringe this patent, would it be worth my while to defend my patent rights in court?" Certainly, it is unwise to spend more in litigation than you could hope to gain in judgments, royalties, and licensing fees from an infringer. And if your patent is not worth the millions you would spend defending it, is it worth the tens of thousands you would spend to acquire and maintain it in the first place? These questions are worth asking, since for a small fraction of these costs you can protect your freedom to practice your invention by publishing a technical disclosure.

Patent enhancements and new uses

Your research and development program not only creates core innovative technology, it also matures the use of the technology in the context of products. Many of the innovations discovered in this innovation development process are patentable, even though they are only incremental in nature and fully dependent upon the core innovation. If you do not protect these inventions, picket fencers might patent them and negatively impact your freedom to practice your own innovation. A well-designed picket fence can even block your approach to the marketplace. But does it make sense to spend tens or hundred of thousands on application and maintenance fees for innovations that don't really need individualized protection?

A more cost-effective approach is to patent fundamental technological advances and then use inexpensive technical disclosures for incremental innovation. This standard defensive disclosure tactic can prevent the patents others would use to build picket fences around your patents. By surrounding your core patent with disclosures you effectively lock out all others and leave your patent as the only exclusive technology in the space. In effect, you expand the scope of your original patent by making it obvious how to use the protected technology in actual applications.

As with incremental improvements of fundamental technology, you can publish all new uses of an invention to protect your freedom to practice. This ensures that your original patent extends its protection into areas of new application. Using technical disclosures as a barrier against picket fencing also improves your position in licensing negotiations. Since your patent is well protected, forced cross-licensing can be prevented, and you can dictate the terms. During your invention review, you should ask yourself the question, "If I could be sure that nobody else can patent this invention, would I actually need a patent?" If your other patents provide you the leverage you need, then publish a disclosure to protect your freedom to practice, and save yourself many thousands of dollars in the process.

Old or obscure prior art

Opportunity for this tactic often arises when obscure prior art is identified during a prior art search performed in preparation for filing a patent application. It is particularly pertinent in situations where such prior art causes you to reduce the scope or even give up the idea of filing a patent application. In this situation, it is essential to make sure that patent examiners can find the obscure prior art that you found as they consider applications from your competitors. Essentially, this takes the legacy document best practice one step further to include old prior art anywhere in the world. The fact that prior art is already in the public domain does not mean an examiner can find it during a prior art search. A hidden reference is of absolutely no value in preventing a bad patent from issuing. Rather than risk the time and expense to fight such a patent, a technical disclosure of old prior art (including the date of the original publication as well as a reference to it) will bring the old prior art to the attention of examiners. If copyright is a concern, a summary of the prior art reference can be published in the disclosure with a reference to the original. A common example of this tactic is publishing summaries or translations of foreign-language prior art references. Awareness of such a foreign language document may have caused you to abandon hopes of patenting a given technology, yet it is likely that others, including examiners, wouldn't find the same document during their prior art searches, and thus a competitor could patent the technology. "Since I cannot patent this technology, shouldn't I make sure others can't as well?"

Technical disclosures originating at the patent application and prosecution stage

As a point of reference, the patent application and prosecution stage begins with preparation of new patent applications, and includes the application prosecution stage. It includes decisions made during the application drafting stage as well as those made based upon developments that occur during prosecution of the patent application. Many of the best practices in this section increase the value of your patent while others help you maintain your freedom to practice the ideas.

Dream patent

Very often, the patent you want is much broader than the one the examiner will allow. You start things off by applying with the broadest claims you think you can get, and the examiner fires back, requiring you to narrow them. Perhaps you iterate a few times before coming up with claims that are as broad as you can get, yet narrow enough to satisfy the examiner. And sometimes, you find it useful to break an original application into several splinter applications that cover various fractions of the original innovation. This process is necessary, but it often leaves you with much less protection than you originally expected, and it also leaves you with a decision. Indeed, it is possible that there are elements of your original idea that remain unprotected by your patents and are exposed to patenting by a competitor, either in the original patenting jurisdiction or in another. Perhaps this is even intentional - you decide it is too expensive to pursue all of the splinter applications. Thus a defensive tactic in such a case is to create a dream patent for the purpose of publication. "If I could claim everything in one application, what would I claim?" The dream patent could be the original application, or it could be even broader. By publishing this dream patent, you assure yourself that there is no component of the idea that could be patented by a competitor who thereby invades your turf and turns your development effort into an IP nightmare.

Early publication of patent applications

In most cases, patent applications are published 18 months after filing, and in the United States, applicants may request early publication. Nevertheless, in all cases there is a significant lag time between your submission of an application and the time that it becomes searchable and effective as prior art. There are several cases where it is advantageous to publish new applications immediately, rather than waiting for them to be published by the patent offices. For example, immediate publication of your application helps to ensure that a foreign patent cannot be granted during the time that your application is held in secret by the first patent office. Otherwise, it is possible that a foreign patent will be granted to a competitor, and your only recourse would be expensive litigation to invalidate the competing patent. Since you already filed for patent protection, your bar dates will not be effected, but you receive immediate protection from the risk of the expense of foreign litigation or interference actions.

Secondly, early publication can be desirable in cases where you wish to promote the patent-pending technology for licensing. The early publication can be used to inform potential licensees of the existence of your technology and the associated pending patent, long before they would find it by searching patents. This can be especially useful in areas where possible licensees are not necessarily known by the inventor and cannot be easily located. This practice is extremely useful to universities that wish only to attract licensing revenue, rather than to create products based on the technology themselves. In another strategy, often referred to as the "Pied Piper" tactic, one can publish technical details of pending patents (this time without disclosing that there is a pending patent) in order to influence other companies to adopt the technology before the patents are granted or the patent applications are published. Once these companies have adopted the approach you suggest in the disclosure, they will be committed to the technology claimed in the patent applications. When the patents are finally granted, the early adopters will have very little leverage in licensing negotiations.

Publish patent rejects

If the patent office rejects your patent and you decide not to pursue it further, you may be at risk of a competitive patent issuing under a different patenting jurisdiction or merely under a different examiner.

You can mitigate this risk by publishing a technical disclosure containing the rejected application, optionally along with the examiners comments describing the reason(s) for the rejection. By publishing the reject, any subsequent patent has to be novel and non-obvious in light of your application and the examiner's
comments and citations as well.

Technical disclosures originating in technology/business review

Technology/business review represents the ongoing process of managing R&D, new technology, innovation, and the competitive technical landscape. Examples of disclosures originating from this point include technical disclosures initiated by:

• Research scientists or production engineers during the course of routine work
• Cross-functional groups in business units during status update meetings on ongoing R&D projects
• Marketing managers who notice threatening patents by competitors

Many other examples exist; these are intended to be illustrative of the broad nature of the technology/business review category. Also, due to the breadth of this category, many of the tactics in the other sections will be applicable during technology/business reviews.

These tactics can substantially alter the texture of a marketplace by influencing the balance of power among your business partners, your competitors, and yourself.

Supplier control

There are two types of competitors to a business. First are the traditional competitors that compete with you for market share. Second are the complementary product developers - those who you might partner with to create value but with whom you also negotiate to maximize your share of the revenues. Patent ownership provides a key leverage point for relationships with complementary product developers (such as your suppliers, partners, or those you supply to)
since patent holders can turn themselves into sole-source providers. However, an innovation that your partner could patent to your detriment is often not the sort of invention that you would want to patent. Perhaps your getting a patent on the technology would damage your relationship. Or perhaps the invention is merely in an area in which you have little direct interest. Such innovation that is created in connection with complementary product developers or partners should be immediately (and perhaps anonymously) placed into the public domain. A well-placed technical disclosure will prevent your supplier or partner from patenting the innovation and thereby obtaining a sole-source position.

For example, you co-design a new type of packaging material for your product that you would like your packaging supplier to develop and provide to you. If you publish the various aspects of that invention, you can prevent your supplier from obtaining a patent. Publishing the invention does not prevent your supplier from using the invention, yet if the supplier fails to deliver for other reasons, you would still be free to obtain the packaging from another supplier willing to use your invention. In some instances, you'll want the exclusive protection granted by a patent. However, in many situations, if the innovation is something you don't intend to produce yourself, or if you did not invent it yourself (i.e. the supplier invented or assisted in the invention), you only need the assurance that you can use the innovation freely.

Bottom line, sometimes patents will be necessary, but when your motivation is to secure your freedom to use the innovation, technical disclosures fit the bill and the budget.

Customer control

As is clear from the previous tactic, IP can provide serious leverage to your supplier, and you need to protect your interests. Looking the other direction
along the supply chain (i.e. toward firms for whom you are the supplier), we
find additional danger and opportunity.

A customer who patents profitable uses or new applications of your products can control the market for your product. A customer that patents lucrative products based on new uses of your components can increase his or her profits and decrease your product outlets or limit your market.

Your only choice is to partner with your customer (who now has premium bargaining position) or forego the opportunity as they partner with vendors who produce similar products to yours. In either case you lose while you watch your competitor get the lucrative contracts that should have been yours. Would you like to avoid being controlled by one of your customers and retain multiple conduits to the ultimate market? You could keep ahead of your customers by patenting applications of your products, but this could be considered offensive to your customer and seriously interfere with your relationships. Besides, is it really necessary? For far less cost you can create and anonymously publish technical disclosures that keep your marketplace free and allow you to avoid being controlled by your customers. Then you can leverage your core competencies as a dominant manufacturer, a well-connected distributor, or a well-branded marketer to compete and succeed in the marketplace.

Review your products and the customers they service. Are there patentable innovations that could limit your conduits of output? Publish the innovations before someone else patents them. Is a customer of yours serially patenting innovation based on your products, keeping potential clients out of your market space? Open up the space (and your market) via a broad, visible, (and possibly anonymous) technical disclosure.

Extend the reach of your patents by covering new uses of existing technology

Your patents were carefully constructed to give you the most extensive coverage you could imagine - at the time of application and within the limits of existing prior art. At the point of a technology review, your innovation has been in the marketplace for a while and you've learned more, but your patent remains the same. Every day your patent is at risk of losing potency as competitors have the opportunity of patenting new uses for your technology.

Suppose, for example, you have created a new jet engine, designed for increased thrust. Your field-trial engineers note that the newly designed engine uses very little fuel while idling. A disclosure that references your patent and shows how to leverage the invention in a significantly enhanced turbine for an army tank could extend your patent into a lucrative licensing area, since defense contractors need your technology. On the other hand, if you don't publish this new use, a defense contractor could patent around your invention (for his own uses) and seize the upper hand in licensing this technology in his own domain.

Thus, at various stages of review, you should take the opportunity to update the scope of your patent by conceiving and publishing new uses of your technology as technical disclosures. Ask yourself, "What could someone use my technology for?" This tactic provides the mechanism to ensure that the only patented (and licensable) technology within your domain is your original innovation itself.

Create/support a technical standard

Many companies benefit from the existence of established technical standards. Disclosures can be used effectively to create or promote technical standards, thereby allowing you to benefit. Typically, there are two types of entities that benefit from the existence of a technical standard. The first type is the company that is, or could be, the creator or producer of the technical standard. The second type relies on the technical standard for development of products that will be more readily adapted by the market.

If you have created a technical standard, an effective use of technical disclosures would be to make freely available any innovation that makes your technology easier to adopt, cheaper to implement, or more useful to end users. Patents in this area could be counterproductive, as third parties may see the space as being too locked up to facilitate development, and they may then choose to support other competing standards.

If you rely on a specific technical standard, you can publish technology that increases its foothold, thereby potentially increasing your overall customer base. This is the principle that has driven much of the development in the Linux open-source community, where software developers produce tools to promote the operating system in order to increase the potential subscriber base for their other software. Again, patenting in this space may deter others from adopting the technology, and actually do you more harm than good.

In either case, technical disclosures can provide a mechanism for increasing your market share in a space with defined technical standards. Unlike patents, the anonymity that is possible with technical disclosures allows you to develop and promote up and coming technical standards without alerting others to your related efforts. This can be a powerful tool in developing new technology without suffering losses in competitive intelligence.

As you no doubt guess or will soon see, the placement of each best practice into a single category or subcategory is an oversimplification, since many of them can originate from various stages in your invention process. It does, however, provide us with a starting point to discuss ways in which to integrate technical disclosures into your current IP strategy.

Since such technology is already in the public domain, the motivation for these tactics is largely to assist the overburdened examiner in locating your prior art. These are among the simplest yet most overlooked tactics. You have decided to place this information into the public domain, but by failing to publish it in a location searched by examiners you eliminate the single greatest benefit of your decision to disclose, while retaining one of the largest risks (i.e. preventing invalid patents from issuing).

Conference presentations and journal articles

Your company controls the flow of information to be released at industry trade shows, scientific conferences, etc. Before you even get to the convention the decision has already been made that the information in your presentation will be disclosed to the public.

As legal prior art, your presentation should prevent your competitors from getting patents related to innovations you present in your talk. However, patent examiners have only limited exposure to the information you present - they can't be at all the conferences, and even the conference proceedings are rarely indexed so as to be readily accessible. Unless you create a technical disclosure, it is unlikely that your legal prior art (i.e. your presentation) will be sufficient to stop your competitors from using your research to enhance their portfolios by obtaining patents on that same innovation (whether invalid or otherwise).

Sure, you can use your conference paper to support your invalidity defense at trial (or force a reexamination), but it will cost you: legal fees, innovators' time, injunctions, etc. But why incur that expense? What's more, you need to be sure you can prove in court that you presented the information at a particular conference on a particular day. Do you still have all your documentation from presentations given three years ago? Could you prove the date irrefutably? Most presenters don't and can't.

A much safer and easier approach is to publish your presentation materials in a technical disclosure to make sure that you can prove what you disclosed and when you disclosed it. This would come in very handy should you find yourself in court trying to invalidate a related patent. More importantly, examiners will have easy access to your disclosure to prevent competitive patents from interfering with your business.

Let's face it, your presentation has already been placed into the public domain. Publishing your presentation gives you the protection necessary to prevent others from unfairly capitalizing on your hard work. Protecting your freedom to practice is as simple as publishing your presentation as soon as it is approved (or at least one day before your presentation, just to be safe), being sure to include your abstract, your notes, and the presentation itself. Similar considerations apply to journal articles. Often, new information is disclosed in journal articles, but these are rarely searched by patent examiners due to the limited time available for each application, coupled with the everexpanding growth of potential content sources. By placing your article into a searchable database that is made easily available to patent examiners, you increase the odds of preventing a bad patent from being issued to a competitor utilizing your innovation.

Simple, inexpensive, but very valuable, technical disclosures can save a huge amount of effort and expense downstream for each piece of unpatented technology. Ask yourself, "Am I absolutely sure that this cannot be patented by my competitor to impede my freedom to practice, to slow me down or harm my business?" If not, you should publish.

Product descriptions and marketing literature

Products you make for public sale are obvious indicators of your innovation. By law, a product or service that is sold or offered for sale in the United States can serve as the basis for rejection of a patent application (i.e. prior art). But will patent examiners know of the existence of your product when determining the validity of a pending patent application? Further, marketing literature, product manuals, advertising material and so on often contain information about your technology, processes, and ideas that may not be covered by a patent.

From a practical standpoint, patent examiners do not have the time to scour the earth for relevant product information or product descriptions. Nor is there an easy means for them to do so, other than what gets published in the IP.com Prior Art Database.

Publishing the descriptions of your products and other related marketing material into a database that is searchable by examiners will ensure that examiners have meaningful access to your product or service descriptions. The result is an expanded region of protection around your products and innovations, which prevents competitors from acquiring new patents in your domain. Rather than risking millions in legal costs, lost market share due to preliminary injunctions, and potential losses in court, the prudent IP manager should be thinking, "By leveraging technical disclosures I can easily ensure my freedom to practice - what do I have to lose?" Needless risk can be avoided via the inexpensive publication of manuals, diagrams, and images, plus records of first sale or intent to sell, into one aggregated location for searching by patent examiners.

Legacy documents

Over the years, many products have come and gone, many conference presentations have been given, and numerous articles have been published. Of these, a fairly small percentage is indexed in such a way that patent examiners have a reasonable chance of finding them. Some of these are forever lost to cardboard boxes or to inoperative, out-of-date computer systems. These will be hard to find even if invalidation of a competitive patent becomes a business necessity. On the other hand, some of these can be located and re-disclosed so they can prevent the competitive patents before they are issued. A practical IP manager should not expect to unearth all of them, but they should secure the protection of a technical disclosure on all such legacy documents that can be found. In addition, if you have not implemented a technical disclosure program before, you probably have an archive of inventions neither disclosed to the public nor patented. Many of these inventions will exist because they had some potential utility to the inventor, therefore some potential utility to your company. Rather than allow these inventions to be wrongly patented by other companies in the future, they should be evaluated against your overall IP strategy to allow suitable documents to be published, thereby securing your freedom to practice that innovation.

With a small investment of time and energy, you can assure your freedom to practice in domains to which you are devoting significant amounts of research, development, and marketing efforts. Wouldn't it be better to be safe than sorry?

Flexible, controllable technical disclosures:

Anonymity - Published technical disclosures have several unique advantages relative to other publications. For example, unlike conventional publications, disclosures can be published anonymously, allowing an author to safely disclose information that might otherwise be useful to a competitor's intelligence function or that could be offensive to a business partner.

Speed - Another advantage of the published technical disclosure is that it can be published extremely rapidly (relative to peer review publications). In fact, technical disclosures can be published in minutes, as opposed to weeks or months. Every day counts in matters pertaining to publication of inventions and patentable technology, since the outcome of patent prosecution, interference actions, and even patent litigation may depend on differences of days or weeks.

Format Flexibility - Even the formats of published technical disclosures can vary significantly, depending on the particular goals of the author and the complexity of the disclosed technology. The length of disclosures ranges widely, and many can be found that are less than a page in length, whereas others are many pages in length. A typical disclosure is one or two pages in length and often contains nothing other than a title, an abstract, and a description of the invention including a visual representation such as graphs, chemical structures, process charts, citations, tables of data, schematics, etc.

Content Control - Finally, since they are not subjected to peer or editorial review, the author has full control in determining the content. This should be used to your advantage in your writing. For example, you can choose which pieces of an invention to disclose and which to keep secret. Or you can provide market information regarding the potential value of the invention if your purpose is to advertise your pending patent. You can choose your context and citations based on how you want readers to think about your technology, or you can suggest wide ranges of applications. It all depends on your goals in writing the disclosure.