Defensive Publishing or Technical Disclosures

There are many reasons why a company may wish to avoid patenting a given invention, ranging from the understanding that the invention may not meet the patentability criteria to a willingness to avoid the costs of patenting. An alternative that is increasingly used by many enterprises is that of "defensive publishing" or technical disclosure, in sharp contrast to keeping it as a trade secret.

Defensive publishing implies disclosing an invention to the public in order to ensure that nobody else is able to patent it. This will ensure that nobody has the right to exclude others over the use of the invention, providing some degree of freedom to operate to all. An important point when publishing defensively is that the disclosure is done in a well-recognized technical journal or other publication that is likely to be consulted by patent examiners who will be checking the literature while examining future patent applications. There are journals devoted to defensive publishing some of which have become respected sources of technical information that are included as part of the PCT minimum documentation for International Search Authorities<a id="P25_4994" href="http://www.wipo.int/sme/en/documents/freedom_to_operate.html#P25_4993" name="P25_4994" >2</a>. Defensive publication is generally never done for a major breakthrough in technology or a core technological invention that is or will be the core strength of an enterprise.

Some large corporations rely on their own technical disclosure bulletins (e.g. Xerox) which are widely disseminated in order to disclose inventions that are not patented. In the US, the USPTO enables applicants to request the publication of a <a href="http://www.uspto.gov/web/offices/com/sol/notices/fr991124.htm" target="_blank" >Statutory Invention Registration (SIR)</a> of a filed patent which is effectively a technical disclosure of an invention for which a patent was applied. In registering an SIR, the applicant abandons the prosecution of the patent, in exchange for the disclosure of the invention by the patent office.