Defensive publication is a patent strategy that makes it difficult or impossible for competitors to patent on or near what a company is commercializing. The basic idea is that the company publishes online or otherwise a lot of subject matter similar or identical to what they are commercializing or protecting themselves by patents.
By making the publication, it will act as prior art against other companies trying to patent. It essentially “poisons the well” for everyone.
With pharmaceuticals for example, the drug company might publish a bunch of structural variants that are similar but not identical to their blockbuster drug, in order to prevent competitors from being able to patent them.
In electronics, a company might publish variations of their printed circuit boards that may not be as good as their commercial product, but still work commercially well enough. The defensive publication would again prevent competitors from patenting nearby.
When a patent attorney creates the defensive publication, they might come up with tens of variations, maybe a hundred if they put a lot of effort into it.
By using AI, it is easy, rapid, and inexpensive to generate hundreds or thousands of designs to defensively publish. This represents a vast amount of prior art that competitors would have to overcome.
Defensive publication also improves a company’s freedom-to-operate space. If a certain space has been extensively published, it is more likely that the company will not infringe other people’s patents.
Defensive publication is a trade-off and should not be used without careful consideration. True, you are preventing competitors from patenting in a certain space, but you are also preventing yourself from patenting it as well (unless you filed your own patent application before making the defensive publication – another viable strategy).
If you decide to defensively publish, AI is a great tool to use to thoroughly blanket the space with prior art disclosure.
Key Takeaways
- Defensive publication blocks competitors from patenting by creating public prior art
- AI tools generate thousands of technical variations quickly, expanding protection at scale
- This strategy is used in industries like pharmaceuticals, electronics, and increasingly AI
- Publishing helps expand freedom to operate but can limit future patent rights
- Strategic timing and IP counsel are essential to balance disclosure and protection
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