Sometime back, one of my ideas on a classification variant using neural-networks got published on IP.com as what’s known as a defensive publication. I always thought it to be a really strong candidate for a patent application, and was a bit disappointed when my employer’s patent review board decided that it should instead be published defensively. A little more research on the topic, however, changed my stance, and upon introspection, I was quite satisfied with the state of affairs. Thought I’d record my observations here for anyone to read and clarify the whole patent-publication gamut.
Let us start with a scenario where a top-notch scientist working in a world-class firm makes a ground-breaking discovery, leading to an equally precious idea and associated methodology to implement the idea.
He knows that useful ideas within an enterprise should be protected and thus, he files a patent disclosure with his local invention review board. These boards comprise of seasoned inventors, several of them master inventors, and almost all of them having a significant patent-portfolio. Consequently, they generally also possess a healthy disdain for triviality. And so they begin to scrutinize the disclosure….
They go through the existing prior-art (what’s known on the subject) and find a few seemingly similar ideas. To clarify, they send out a questionnaire to the scientist soliciting a response. Our dear scientist, being quite busy evangelizing new ideas, misses the solicitation deadline and gets a note with the subject – ‘Disclosure Rated Close’ in his inbox after a few days.
Panic struck, he immediately writes to the review board expressing his distress and sense of injustice. Soon after though, he realizes his tardiness and writes a follow-up apologetic note asking for a re-consideration of the disclosure. He spends that night sorting thru the core idea and drafting the answers to the questionnaire – his mind already somewhat overtaken by new ideas. He sends his detailed explanation requesting the board to revoke the ‘close decision’ on the disclosure. After much deliberation, he finally succeeds and the disclosure status switches back to ‘under evaluation’. Rejuvenated with his little win, our scientist gets that transient feeling that he’s found his sixth sense and is next in line after Euler, Newton and Einstein.
The communication process goes on for sometime and then, the review board starts to exhibit that once-in-a-blue-moon impression of ‘getting the idea’. But now, they face another dilemma. They are pretty convinced that the idea is unique and the implementation novel, unlike to anything done before, but the patent, if filed, wouldn’t have significant business value.
Our scientist is inconsolable.. “Business value?!! But this is a beautiful innovation.. novelty, uniqueness, rigor.. everything in perfect proportions. Just patent it, it would create a new business for you.”
It would not, however, benefit the existing businesses. “If filed and litigated, the revenue that the patent would generate on an average after ‘n’ years and after going through ‘t’ lawsuits doesn’t weigh well against the combined cost of the patent application, those ‘t’ lawsuits and/or the cost of establishing a new business using the invention.”
In the hindsight, these explanations seem pretty rational. But the scientist still reasons, “Okay, so you don’t want to file a patent application now, no problem.. lets wait until a more opportune time”.
Board reasons – “Well, your idea is unique right now. We can wait, but then you’ll risk someone else figuring it out, in which case, your efforts will be rendered useless.”
The scientist takes a step back and thinks about the 6 billion people, who in that moment, all seem capable of taking away his prized possession. “So, what is the way out then?”, asks our Scientist.
“Well.. lets publish this defensively, which would mean publishing this in an open database accessible to everyone. That way, we preserve our rights to use it and no one else can patent it in future. So, from that point onward, it’ll become a part of non-patentable public knowledge. You will of course retain the authorship and your organization will become the disclosing entity. The only catch is that since it’ll be public, we won’t be able to generate any revenue through lawsuits. However, you can publish your results at a conference, which would provide you and your work the right level of exposure.”
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