I'm surprised at how few of the nation's leading companies aggressively use defensive publications to strengthen their intellectual asset portfolios. One major company I talked with recently told me that when they have a concept that they think should be published, they will write it up as a patent and file it with the PTO - paying big bucks to get a publication on file. Not to mention raising questions about knowingly filing something they don't think is really an invention. Doesn't sound wise at all! When I talk about the aggressive publication efforts I spearheaded at Kimberly-Clark, I get a lot of surprised looks. "Oh, we didn't think of that." "Didn't know you could do that so easily." "Hey, that really makes sense." But very few say anything like, "Right - we've been doing the same."
HP and IBM are vigorous publishers, to their credit. But much of the world really doesn't grasp how powerful publications can be. So why publish?
For one thing, defensive publications that create prior art can protect or even increase the value of your existing patents and applications. They can do this by disclosing numerous potential improvements to reduce the risk that others will get improvement patents on top of your estate. That strengthens your future patent clearance position ("freedom to operate" or "right to practice" are terms that others use). It also reduces the risk that a potential licensee will have to get lots of additional licenses from others to practice the art, thus preserving value in future licensing activity.
Publications can also be used to gain credibility for test methods or other tools that may be useful in your patents.
Publications may be used to reduce the value of competitive investments in certain technology areas, for you may be able to create prior art that reduces the potential patent territory that others can obtain in the future.
Publications can also confuse and distract competitors, as they struggle to understand if a publication from you reflects a serious investment in an area or is related to pending patent activity. To do this well, some of your publications should be based on actual patents you have filed, and others should look as if they are. And some should be anonymous but readily identifiable as your work, while others should disclose your identity.
There are several other things you can do with publications that we may discuss here later.
Where to publish? One venue that I strongly recommend is IP.com. This company has its origins in IBM's aggressive publication efforts, providing an opportunity for others to quickly and inexpensively publish a document that can be electronically searched by the PTO, and that is time stamped and archived with certain proof of its publication date, unlike most resources on the Web. Costs are low and ease of use is very high. It's one of the best ways to get prior art out there.
One of my publications at IP.com was recently cited by a PTO examiner against a case by IBM. Interesting! The PTO is increasingly using this resource.
If you want a holistic, broad approach to intellectual assets, you've got to do more than just file patents. At a minimum, you need to strengthen the patents you are seeking with additional publications. And there is much more you can do with that tool - just one of many tools beyond patents that must be part of a robust intellectual asset strategy.