Defensive Publication - Patexia IP Matters Webinar
Defensive Publications Open Invention Network Linux Defenders Program
Article 1 Section 8 Clause 8"...Promote the progress of Science anduseful Arts by securing for limited times toAuthors and Inventors the exclusive Rightto their respective Writings and Discoveries."
Software patent grantsBeginning with those granted pre-1991
Number of lawsuits filings involving software patents
Role of patent examiner● Determine whether applications comply with the basic format, rules and legal requirements● Determine the scope of the invention● Search for prior art● Issue office actionsOver the life of the application, the patentexaminer spends 20 maximum hours doing allof the above Peer To Patent First Pilot: Final Results
Challenges the Examiner FacesAfter all is said and done, the patent examineronly gets 7-8 hours to determine whether anapplication is worthy of a 20 year monopoly.Challenges:● Patent Backlog● Patent Legalise● Limited access to non-patent literature
Examples of prior art not typicallysearched by the patent office● Scientific Publications● Technical Reports (universities, companies)● Conference proceedings (scientific/ non- scientific)● Conference talks● Blog posts● Mailing list archives● Usenet posts● ...
Lawsuits filed by Non-PracticingEntities RPX Corporation
Limiting and Removing the PatentThreatThere are three points in time where we caninterfere:1. Before a patent claim is submitted by anentity: Defensive Publication2. During a patent examination: Pre-GrantSubmissions.3. Trying to invalidate a patent after it has beenissued: Post issue
Innovation Options1) Patent everything you create2) Ignore patents and cross your fingers that noone sues3) Actively protect your work
What is a Defensive Publication?A publication that serves as explicit prior artand ensures freedom to operate around yourdesign.● They are a powerful way to prevent bad software patents from getting issued.● Give the patent examiner insight as to the state of technology.
Healthy InnovationDefensive Publications allow us to disrupt thebalance of the construct of the patent systemApproach: Patents are awarded if New and NotObvious● If there is no prior art then the patent will be awarded.Creating prior art destroys the possibility for theclaimed invention to be patented.
How to write a defensivepublication?Writing a defensive publication is simple:● Title● One to two pages of text (at minimum) describing HOW the idea works: ○ Introduction ○ A description of what is currently available and of your idea ○ The steps involved● A figure describing the interaction between componentsMost important is explaining HOW this wouldwork.
Who writes Defensive Publications?Many entities publish defensive publications:IBMThe Internet Society (namely the IETFs Requests for Comments)CiscoMicrosoftLenovoNISTMotorolaSiemensNokiaSonyXeroxIndividuals
When to write a defensivepublication?● Whenever you come up with an idea that makes you enthusiastic● It does not matter if you implemented or notIf you want to blog about it and tell your friendsin the middle of the night about your idea, thatis the right time.
How is Linux Defenders Involved?Submitting defensive publications throughLinux Defenders ensures that the patentexaminer will gain access to these.Process:● Submit on linuxdefenders.org● Each defensive publication gets posted on IP.com● IP.com is a digital notary● Patent examiners use IP.com when conducting prior art searches.
ReferencesRPX Corporation, Tracking Patent Activity: A Post Script tothe DOJ Report (March 2013)http://www.rpxcorp.com/index.cfm?pageid=14&itemid=29Peer To Patent, First Pilot: Final Results (2012).http://dl.dropbox.com/u/2541719/First%20Pilot%20Final%20Results.pdf