Friday, February 19, 2010

Is Defensive Publishing Appropriate for Small Businesses?

IBM has announced its plans to expand "defensive publishing" rather than patenting as a means to protect its intellectual property. A patent prevents others from practicing the specifics that are covered by the patent, but opens up a Pandora's box of potential work-arounds and litigation. Defensive Publishing is in essence placing IP into the public domain, rendering it thereby unpatentable by anyone, even the inventor.

Since public domain knowledge can be cited as prior art against patent applications, the onus would rest on any subsequent inventor to prove novelty beyond whatever is covered by the defensive publishing. Such an approach would allow IBM or anyone else to practice their art, to use the IP that has been published, making it more difficult for others to restrict that practice by means of a patent.

I have considered this an approach, easier and cheaper than preparing and submitting patent applications, then waiting the 2, 3, 5 years it takes to hear whether it's been approved or denied. The fear for a small business is that while a company like IBM has name recognition and a reputation to rest on, a small little-known quantity like my firm may easily be swallowed up. Were I to engage in defensive publishing, it would protect the ideas in preventing others from restricting my ability to practice them. But it might ring the death knoll of my company.

The fear is that as soon as those ideas become valuable, a large company with a top-notch marketing team, a long-standing reputation and credibility might simply scoop up the ideas, rebrand them, and put me out of business. It's a tough call, a very tough call. Because in the heart of, I'm a researcher. Far worse than going out of business would be for the ideas to never see the light of application.

But am I ready to prepay my company's cemetary plot, in hopes that we won't need to use it any time soon?

1 comment:

  1. Defensive Publishing seems to be a tactic to benefit big business only. If I understand correctly, the strategy is to publish something to the public domain, then throw your weight around to dominate the development and production of that specific technology. Instead of building walls, they're knocking walls down because they think that they the advantage.

    The concept might work well where a single company dominated a market, but I believe that it would fail where there were at least two players that had high stakes. If more than one company can bring their resources to bear in effort to exploit the new technology, it doesn't serve the purpose of the originating company to use the defensive publishing strategy . . . unless they are in cahoots with the other major player in effort to limit other companies from gaining market share.

    From the standpoint of a small business, you have to be pretty generous to try your hand a defensive publishing. I could see that you might try it if you were hoping to use your innovation as a bullet point on your resume to get hired by the larger company. However, if you're in-it-to-win-it, it is much better to protect your IP. At least that way if big business does want the idea, they have to pay you either through a royalty agreement or via acquisition.


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