Must all innovation/inventions be patented? – Defensive Publication
Patents have always been the means of protecting your inventions against unwarranted use. Patenting your invention prevents a person from using your invention without your permission or from getting a patent on your invention.
A patent endows the owner of the patent with an exclusive right for a limited period of time to prevent others exploiting the patented invention without permission. This, by far, is the greatest advantage of patenting your innovation.
However, there are a lot of considerations that arise when you are thinking to patent your innovation. The foremost consideration is the cost of patenting your innovation. What if you do not want to incur the expenditure of patenting your inventions and yet want to use your inventions in the public domain?
Defensive publication is the strategy. Still in its nascent stage in India, a defensive publication is a very important tool to prevent others from getting a patent of your invention.
What exactly is a defensive publication?
A defensive publication is a preemptive disclosure of an invention so that it enters the public domain. In simple words, you have an innovation that you do not want to patent. But, you want to disclose it to the public while ensuring that nobody else can patent your innovation/inventions. That is when you resort to defensive publication.
This ensures that nobody can get a patent right over the innovation as the defensive disclosure will now become prior art.
Importance of defensive publications:
The most important aspect of a defensive disclosure is that it is the least expensive means of ensuring continued freedom of use of an innovation. It enables the public to use your inventions. Sometimes on a cost-benefit analysis, you realize that patenting your inventions could be more expensive than the benefits that you can reap for patenting it. Defensive disclosure is the best strategy for freedom to operate and commercialize your innovative product.
Defensive publication allows placing prior art in the public domain that prevents the possibility of non-infringing substitute technologies from getting a patent.
How to materialise a defensive publication?
Before deciding on a defensive disclosure you must be absolutely sure that you want to relinquish all potential patent rights you have on the inventions. You need to ensure that your defensive disclosure has a publication date that can be reliably determined. This is important because the defensive publication will serve as a prior art.
Another important point to keep in mind is to ensure that the description of the innovation is enabling. In the sense that, any person who is skilled in the relevant field must be able to effect the innovation without undue effort.
There are a lot of defensive publication websites available, for example, www.defensivepublications.org, www.researchdisclosure.com are useful for publishing the innovations that do not entitle for high cost patenting.
However, if you want an exclusive right to use your inventions and you can afford the cost of patenting, then filing patent a for your innovation is the best approach.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.