Securing a patent is often seen as the ultimate way for protecting innovation. A patent confers on its proprietor the right to prohibit others from commercially using an invention. This includes, amongst others, manufacturing, storage, offering, placing on the market, importing and exporting. However, pursuing and maintaining patents can be costly and time-consuming. Furthermore, in fast-moving fields, a technology may become obsolete until a patent is eventually granted.

Have you ever decided against patent protection, because an invention did not have enough commercial potential to justify the effort? Still, you wanted to keep the door open to use the respective technology in the future?

Then, a defensive publication might be the right choice for you.

A defensive publication is prior art which is put on purpose into the public domain to stop others obtaining a patent on the same invention.

But if you decided against going for a patent, why should you still see your patent attorney?

Here is why:

In case you later have to defend against a third party patent, providing evidence that your defensive publication actually was available to the public before the relevant date might become very difficult – for instance if it was simply published on your website. A patent attorney can help you to publish your defensive publication in the right way, so that no unpleasant surprises arise.

In your defensive publication, you need to present the invention in a way sufficient for it to unfold its prior art effect. Gaps might for instance lead to a situation where there is no enabling disclosure – and therefore possibly no prior art. A patent attorney can help you to choose the right wording and to present the required information, in order to be on the safe side.

If done properly, a defensive publication can be a powerful tool for protecting your business – for only a fraction of the cost of a patent.