Legal Definitions - defensiva

Defensive Disclosure refers to the deliberate act of publicly revealing details about an invention or innovation, not with the intention of obtaining a patent for oneself, but specifically to prevent anyone else from being able to patent that same invention. By making the information public, it becomes "prior art," meaning it is already known and therefore cannot be considered new or novel enough for a patent to be granted to a later applicant. This strategy ensures that the invention remains in the public domain, accessible to all, rather than becoming the exclusive property of a patent holder.

Here are some examples illustrating Defensive Disclosure:

• Imagine a large software company that develops a clever, but relatively minor, algorithm that significantly improves the efficiency of data processing. They decide this particular algorithm is not a core strategic asset they wish to patent themselves, perhaps due to the cost or the desire for it to be widely adopted. However, they absolutely do not want a competitor to patent this algorithm and then demand licensing fees or prevent them from using it. To prevent this, the company publishes a detailed technical paper describing the algorithm in a widely read industry journal and makes the code publicly available on an open-source platform.

  Explanation: By publishing the algorithm's details and code, the company establishes it as public knowledge and "prior art." This means no other company can later claim the algorithm as a new invention and obtain a patent for it, effectively keeping the technology open for all to use, including the original developer, without fear of infringement claims.

• Consider a university research team that invents a novel, low-cost method for purifying contaminated water, which they believe should be freely available for humanitarian benefit. They do not want to patent it themselves, nor do they want any private entity to monopolize the technology and restrict its use. To ensure it remains in the public domain, they formally submit a detailed description of their water purification method to the U.S. Patent and Trademark Office (USPTO) for a Statutory Invention Registration (SIR). This process publishes the invention's abstract in the Official Gazette without granting a patent.

  Explanation: The SIR process is a formal type of defensive disclosure. By registering and publishing the invention, the research team ensures that the purification method becomes prior art, preventing anyone else from patenting it and allowing its widespread use for public good without licensing restrictions.

• A small design studio develops a unique aesthetic and functional layout for a new type of smart home device interface. While they believe their design is innovative, they are unsure if it meets all the strict legal requirements for patentability (e.g., non-obviousness) and lack the resources for a lengthy patent battle. To deter larger competitors from claiming their design, and to protect their own ability to use it freely, they decide to publish a comprehensive blog post, accompanied by detailed mock-ups and a video demonstration, explaining their UI concept on a popular tech design website and share it widely on social media.

  Explanation: Even if the design studio doesn't pursue a patent, by publicly disclosing their UI concept through the blog and video, they establish it as prior art. This makes it significantly more difficult, if not impossible, for a competitor to later claim the same UI concept as their own invention and secure a patent, thus protecting the studio's ability to use their own design without facing infringement claims.