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Defensive Publications
    Open Invention Network
   Linux Defenders Program
Article 1 Section 8 Clause 8

"...Promote the progress of Science and
useful Arts by securing for limited times to
Authors and Inventors the exclusive Right
to their respective Writings and Discoveries.
"
Overall Patent Allowances
Software patent grants
Beginning 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 actions

Over the life of the application, the patent
examiner spends 20 maximum hours doing all
of the above
                         Peer To Patent First Pilot: Final Results
Challenges the Examiner Faces
After all is said and done, the patent examiner
only gets 7-8 hours to determine whether an
application is worthy of a 20 year monopoly.

Challenges:
● Patent Backlog
● Patent Legalise
● Limited access to non-patent literature
Examples of prior art not typically
searched 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-Practicing
Entities




                             RPX Corporation
Limiting and Removing the Patent
Threat
There are three points in time where we can
interfere:
1. Before a patent claim is submitted by an
entity: Defensive Publication
2. During a patent examination: Pre-Grant
Submissions.
3. Trying to invalidate a patent after it has been
issued: Post issue
Innovation Options
1) Patent everything you create

2) Ignore patents and cross your fingers that no
one sues

3) Actively protect your work
What is a Defensive Publication?
A publication that serves as explicit prior art
and ensures freedom to operate around your
design.

● 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 Innovation
Defensive Publications allow us to disrupt the
balance of the construct of the patent system

Approach: Patents are awarded if New and Not
Obvious
●   If there is no prior art then the patent will be
    awarded.

Creating prior art destroys the possibility for the
claimed invention to be patented.
How to write a defensive
publication?
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
  components
Most important is explaining HOW this would
work.
Example of a defensive publication
Who writes Defensive Publications?
Many entities publish defensive publications:
IBM
The Internet Society (namely the IETF's Requests for Comments)
Cisco
Microsoft
Lenovo
NIST
Motorola
Siemens
Nokia
Sony
Xerox
Individuals
When to write a defensive
publication?
● Whenever you come up with an idea that
  makes you enthusiastic
● It does not matter if you implemented or not

If you want to blog about it and tell your friends
in the middle of the night about your idea, that
is the right time.
How is Linux Defenders Involved?
Submitting defensive publications through
Linux Defenders ensures that the patent
examiner 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.
Questions? Contact me!

acasillas@openinventionnetwork.com

           Thank you!
References
RPX Corporation, Tracking Patent Activity: A Post Script to
the DOJ Report (March 2013)
http://www.rpxcorp.com/index.cfm?pageid=14&itemid=29

Peer To Patent, First Pilot: Final Results (2012).
http://dl.dropbox.com/u/2541719/First%20Pilot%20Final%
20Results.pdf
Defensive Publication - Patexia IP Matters Webinar

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Defensive Publication - Patexia IP Matters Webinar

  • 1. Defensive Publications Open Invention Network Linux Defenders Program
  • 2. Article 1 Section 8 Clause 8 "...Promote the progress of Science and useful Arts by securing for limited times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. "
  • 4. Software patent grants Beginning with those granted pre-1991
  • 5. Number of lawsuits filings involving software patents
  • 6. 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 actions Over the life of the application, the patent examiner spends 20 maximum hours doing all of the above Peer To Patent First Pilot: Final Results
  • 7. Challenges the Examiner Faces After all is said and done, the patent examiner only gets 7-8 hours to determine whether an application is worthy of a 20 year monopoly. Challenges: ● Patent Backlog ● Patent Legalise ● Limited access to non-patent literature
  • 8. Examples of prior art not typically searched by the patent office ● Scientific Publications ● Technical Reports (universities, companies) ● Conference proceedings (scientific/ non- scientific) ● Conference talks ● Blog posts ● Mailing list archives ● Usenet posts ● ...
  • 9. Lawsuits filed by Non-Practicing Entities RPX Corporation
  • 10. Limiting and Removing the Patent Threat There are three points in time where we can interfere: 1. Before a patent claim is submitted by an entity: Defensive Publication 2. During a patent examination: Pre-Grant Submissions. 3. Trying to invalidate a patent after it has been issued: Post issue
  • 11. Innovation Options 1) Patent everything you create 2) Ignore patents and cross your fingers that no one sues 3) Actively protect your work
  • 12. What is a Defensive Publication? A publication that serves as explicit prior art and ensures freedom to operate around your design. ● They are a powerful way to prevent bad software patents from getting issued. ● Give the patent examiner insight as to the state of technology.
  • 13. Healthy Innovation Defensive Publications allow us to disrupt the balance of the construct of the patent system Approach: Patents are awarded if New and Not Obvious ● If there is no prior art then the patent will be awarded. Creating prior art destroys the possibility for the claimed invention to be patented.
  • 14. How to write a defensive publication? 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 components Most important is explaining HOW this would work.
  • 15. Example of a defensive publication
  • 16. Who writes Defensive Publications? Many entities publish defensive publications: IBM The Internet Society (namely the IETF's Requests for Comments) Cisco Microsoft Lenovo NIST Motorola Siemens Nokia Sony Xerox Individuals
  • 17. When to write a defensive publication? ● Whenever you come up with an idea that makes you enthusiastic ● It does not matter if you implemented or not If you want to blog about it and tell your friends in the middle of the night about your idea, that is the right time.
  • 18. How is Linux Defenders Involved? Submitting defensive publications through Linux Defenders ensures that the patent examiner 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.
  • 20. References RPX Corporation, Tracking Patent Activity: A Post Script to the DOJ Report (March 2013) http://www.rpxcorp.com/index.cfm?pageid=14&itemid=29 Peer To Patent, First Pilot: Final Results (2012). http://dl.dropbox.com/u/2541719/First%20Pilot%20Final% 20Results.pdf