The impact of some software innovations are big and others are small. However, if another organization were able to secure a patent on that idea or something very similar, one might be barred from using one’s own innovation. This may be particularly bad for innovations in the field of accessibility, which ideally should be available to as many people who need to use the technology. In order to protect an innovation, there are three general options:
- Obtain patent protection. This option takes several years and is expensive, with attorney fees alone likely costing over $5000 for a very basic patent (Quinn, 2011).
- Keep the innovation secret (i.e., a trade secret). If your innovation is relatively easy to reverse engineer or figure out, then this offers no protection. Any organization who figures it out could potentially patent it.
- Defensively publish information. In patent law, anything published as prior art prevents someone else obtaining a similar patent. This publication allows you to keep using your innovation and allows others to benefit from that work. Even large companies and organizations use the defensive publication strategy to protect intellectual property that may not be worth the expense of full patent protection.
More about Defensive Publications
Defensive publications or technical disclosures are a relatively inexpensive way to prevent others from obtaining a patent that covers your innovation. Any type of publication (including publication in a conference proceeding, journal, or even in an online posting) should theoretically prevent someone else from obtaining a similar patent. However, more obscure publications may be missed by patent examiners because of the relatively small amount of time they have to search for prior art (Edge, 2012). Once a patent has been awarded, it is much harder to break the patent because the burden of proof has shifted.
There are several options for more visible publication strategies to establish prior art:
- Potentially free: http://www.defensivepublications.org/ – Linux Defenders has a program to publicly disclose software to help protect open source software from patent litigation. Submissions are reviewed and edited at no cost to the contributor. If the program decides to publish the submission, it will pay the fees for inclusion in the prior art database kept by IP.com.
- $225 per submission: http://ip.com/ – IP.com keeps a prior art database that is purported to be regularly checked by patent examiners. For a fee, IP.com will include your submission in this database.
- $120 (€90) per page: http://www.researchdisclosure.com/ – Research Disclosure keeps a prior art database and publication that has PCT Minimum Documentation status (WIPO, 2005), which means that (by international treaty) patent examiners are to search this database. The company charges a fee per page for publication.
- Quinn, G. (2011, Jan. 28) The Cost of Obtaining a Patent in the US. http://www.ipwatchdog.com/2011/01/28/the-cost-of-obtaining-patent/id=14668/
- Edge, J. (2012, July 4) Akademy: Defensive publications. https://lwn.net/Articles/505030/
- WIPO (2005) PCT Minimum Documentation: Comprehensive Review. Geneva: World Intellectual Property Organization. http://www.wipo.int/edocs/mdocs/pct/en/pct_mia_11/pct_mia_11_6.pdf
Note: A version of this article is also posted on the GPII wiki.