An anecdote on Technical Disclosures and Defensive Publications
Recently, one of my disclosures on a classification variant using neural-networks got published on ip.com as a defensive publication. I always thought it to be a really strong candidate for a patent application, and was rather upset when I came to know that it would be published openly. A little research on the topic however changed my impression, and on retrospection I was quite happy with the state of affairs. I thus decided that I would record my observations here for anyone to read and clarify this whole patent-publication terminology as such. But, as always, blessed with whatever, I can’t just resist that tinge of drama; I would thus tell you an anecdote.
Let us start with an example scenario whence 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 ideas are meant to be patented and thus he files a disclosure with his local Invention Development Team (IDT). Now, this IDT consists of equally capable guys, with a decent patent-portfolio and a healthy disdain for jack-in-the-office patent wannabes. They begin to scrutinize the disclosure as usual.
They go through the existing and easily-accessible prior-art and find some seemingly similar implementations. Thus, they immediately publish a questionnaire soliciting a response. Now, our dear scientist, being quite busy with putting new ideas and draft disclosure in pipeline, misses the solicitation deadline given, and gets a note with the subject - ‘Disclosure Rated Close’ in his mailbox after some days.
Panic struck, he immediately writes to IDT expressing his distress and feeling of injustice et al. Soon after, he realizes his sloppiness and writes another apologetic note asking for a re-consideration of deadline and disclosure. He spends that night sorting out the core idea and drafting the answers to the questionnaire.. with his mind already messed-up with new ideas. He finally strikes gold and publishes his detailed explanation requesting IDT to revoke the ‘close decision’ on the application. After much deliberation, he finally succeeds and the disclosure status again changes to ‘under evaluation’. Rejuvenated with his cock-a-doodle of victory, he starts following-up with IDT at regular intervals, dropping notes and giving an impression as if he is next-in-line after Euler, Newton and Einstein.
Anyhow, the IDT guys, after many more comparisons and explanations aren’t satisfied with whatever prior-art they evaluated the idea against, and give the decision as ‘Search’. Now, this doesn’t go down too well with the scientist guy. Afterall, if you ask him, he had manually searched every single entry on Goog, and found nothing even remotely similar.
Anyhow, he starts working with the IDT; IDT guys giving him a new paper every other day to evaluate and he making sure that he points out sufficient differences between that and his own disclosure. This process goes on for sometime, after which, the IDT folks start to give that one-in-a-blue-moon feeling of getting impressed. But now, they face another dilemma. They were pretty convinced that the idea was unique and the implementation novel, unrelated to anything done before, but the patent, if filed, wouldn’t have business value.
Now, the scientist guy 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 business in any way. “The revenue that the patent, if filed, would generate on an average after ‘n’ number of years and after going through ‘t’ lawsuits doesn’t weigh well against the cost of the patent application (cost of filing + cost of effort + cost of time spent) and the cost of those ‘t’ lawsuits and the cost of establishing a new business to accommodate your invention.”
In the hindsight, these explanations seem pretty rational. But the scientist guy still reasons - “Okay, so you don’t want to file an application now, no problem.. I can wait till we get a suitable business, and we’ll then file an application.”
“Ah well, your invention is valuable and has got all the limelight and hype because ‘it is unique right now’. We can wait, but then you’ll risk someone else making the same discovery and filing a patent application, in which case, your efforts will be rendered useless.”
The scientist snapped and took a moment to think about 6 billion people, who at that moment, seemed all capable of making the par and taking away his prized possession. “So, what is the way out ?”, asked the Scientist guy.
“Well.. lets publish this defensively, which would mean publishing this in an open database accessible to all patent attorneys. That way, we preserve our right of using this and no one else can patent this in future. So, from then on, this becomes a piece of un-patentable, public knowledge. You will of course retain the major 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.”
To the scientist, this is a revelation - Unification of business and technological brilliance. Feeling of maintaining the celibacy of a brain-child forever. An equilibrium. And thus, he decides to rest his case.
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