Defensive Patent Publishing

by Stephan Kinsella on February 4, 2011

As I note in my post “The” Purpose of Patent Law, it is commonly said that “the” purpose of patent law is to incentivize innovation. After all, the Constitution’s patent and copyright clause says Congress is empowered to secure “for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries”–that is, to set up copyright and patent law–in order “To promote the Progress of Science and useful Arts.” It is promotion of innovation–”useful Arts”–that is “the” stated purpose of patent law, at least as stated in the Constitution. But the Patent Act seeks to accomplish this goal by granting to the inventor a limited monopoly1 in exchange for disclosure. That is, patent law encourages disclosure of ideas by rewarding it. The idea is that inventors would try to keep their ideas secret (protected as a “trade secret”) out of fear competitors could copy them. So by giving the inventor a monopoly that provides him with a temporary respite from competition, he has less fear of disclosing his ideas–and, in fact, the patent law requires full disclosure as the price the inventor pays to receive the monopoly patent grant.

And it is true that hundreds of thousands of invention disclosures are made public to the world each year when patent applications are published (usually published at about 18 months after they are filed). How useful this is, is debatable. After all, many, if not most, innovative products, when sold, can be reverse engineered. That is, the inventor has an incentive to profit off of innovations by incorporating them in products, and when the products are sold competitors, and the world, can learn things from the product themselves. If I invent a better mousetrap, when I sell it people learn about the innovations incorporated in it. In fact the seller has an incentive to explain these innovations in order to sell it. So many patent disclosures are just redundant.

In any case, there is another, more perverse, way that the patent system encourages invention disclosure: defensive patent publishing. If you come up with an inventive process or design and are using it in your business, you can patent it, sure. But you might not want to waste $20k. Or you might not have millions lying around to use to assert it. Anyway most of these patents are taken out defensively–a sort of “porcupine” defense strategy designed to keep the others with patents from suing you, for fear of being countersued. So we have all these companies spending millions to collect patents just so they don’t sue each other (this erects barriers to entry that keeps little guys out, of course). The point is building up a patent porftolio is a big expensive waste that some companies cannot afford.

Unfortunately, if you  fail to patent your own inventions, then the risk is some other company may later independently invent and patent it, and sue you, forcing you to pay damages or even stop using your own invention (there is no general defense for prior users or independent inventors).

In response to this unfortunate situation, one thing you can do is make your invention public in such a way that it becomes part of the public “prior art” to make it more difficult for someone to later file a patent on that invention. There are several ways to do this. One is to file a “statutory invention registration” with the US Patent Office, but this is complicated and expensive (about $920 or $1840; see 37 CFR sec. 1.17(n) and (o) fees). Another would be to self-publish but this has drawbacks. Research Disclosure offers this service, but it costs $120 per page. Until someone comes up with a free, reliable wiki type open source solution for this (I have half a mind to use the Mises Wiki to provide such a free platform to help people defend themselves from the patent vulture), probably the best option is IP.com’s Prior Art Database, which costs $225 per publication for the online version. (A related idea is the idea of an “antipatent.”)

It’s a bit sad that the patent law has not only twisted the arms of patentees to induce them to make public things they would otherwise keep secret, but that it’s inducing innocent, non-patenting companies to have to drop their knickers just to avoid the cost of patenting or of being a victim of a patent suit. But given the current system, this is an option that is not a bad one for companies who have this concern.

[Mises blog cross-post]

  1. See my post Are Patents “Monopolies”? []
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David Evans February 17, 2011 at 11:55 am

Just to let you and your readers know that we recently launched a patent research disclosure service which allows inventors to submit their documents and have them published on our online database and also in printed form. This printed journal is then distributed to all the major patent offices around the world.

We have purposely designed our system to be fair to those users who submit large quantities of documents, as the price per page falls dramatically for volume users. Both publication and searching can be ordered directly online at http://www.iplab.co.uk/patent-research-disclosure

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