Defensive Publication and Patent Application

Defensive Publication and Patent Application


In the competitive world of intellectual property, individuals and companies often seek ways to protect their innovations and ideas from being copied or stolen by others. One common method used for this purpose is filing a patent application, which grants the inventor exclusive rights to their invention for a set period. However, an alternative approach known as defensive publication has gained popularity in recent years.

Patent Application:

A patent application is a formal request to the government to obtain exclusive rights to an invention for a certain period. While the process of getting a patent can be long and expensive, it provides the strongest legal protection for intellectual property. With a patent, the inventor can take legal action against anyone who uses the invention without permission and can ask for compensation. Additionally, a patent can be an important asset for securing investment, licensing agreements, and partnerships. However, one drawback is that it requires disclosing detailed information about the invention to the public, which may allow competitors to get around the patent or improve upon the idea.

Defensive Publication:

On the other hand, a defensive publication is a strategy in which an invention or innovation is disclosed to the public without trying to get a patent for it. By publishing detailed information about the invention, the goal is to prevent others from patenting the same idea thereby blocking competitors from obtaining exclusive rights to the innovation. A defensive publication is a cost-effective and efficient way to protect intellectual property, as it does not require the time and resources needed for a patent application. However, one major drawback of a defensive publication is that it does not offer the same level of legal protection as a patent. Without a patent, there is no guarantee of legal action against infringement, and competitors may still be able to profit from the innovation.

Big Tech Defensive Publications:

Companies like Google and IBM frequently use defensive publications. IBM’s Technical Disclosure Bulletin, available since the 1950s, is a well-known example. More recently, Google has utilized defensive publications through their “Google Prior Art” database, which they use to document inventions and establish prior art to block others from patenting similar technologies.

USPTO's Defensive Publication Program:

The Defensive Publication Program offered by the USPTO enables inventors to publish a detailed description of their invention without applying for a patent. By doing so, inventors establish prior art, which can be used to defend against future patent claims. This program acts as a defensive strategy, protecting inventors from potential lawsuits over patent infringement.

The process of submitting a defensive publication to the USPTO involves preparing a formal document that includes a detailed description of the invention, along with any accompanying figures or diagrams that help illustrate the innovation. Once the publication is reviewed and accepted by the USPTO, it is made publicly available in the USPTO database, ensuring that the information is accessible to patent examiners and other inventors.

Patent Case on Defensive Publication:

A well-known case that highlights the importance of defensive publication is that of Tesla Motors. In 2014, Tesla made the bold decision to open-source all of its electric vehicle patents, essentially giving them away for free to anyone who wanted to use them. This move was strategic, as Tesla recognized that the growth of the electric vehicle industry was crucial for addressing climate change and that by making their patents available to others, they could promote innovation in the sector.

By choosing to defensively publish their patents, Tesla was able to establish themselves as a leader in the electric vehicle market while also encouraging competition and collaboration within the industry. This ultimately benefitted not only Tesla but also the greater good by driving technological advancements in sustainable transportation.

Another case is the development of the open-source software movement, where developers choose to publish code openly to promote collaboration and prevent others from patenting their work. One of the most famous examples of a defensive publication case is the story of Linux and the Open Invention Network (OIN). The OIN, formed in 2005, is a community of companies dedicated to protecting the Linux ecosystem from patent lawsuits. The OIN achieves this by acquiring patents and providing them royalty-free to its members on the condition that they will not assert their patents against Linux.

In 2009, the OIN filed a defensive publication to prevent a potential patent lawsuit from a non-member company. This move was seen as a strategic defence tactic to protect Linux and the open-source community from litigation threats.

Difference between Defensive Publications and Utility Models

Defensive publications and utility models are two distinct strategies used to protect intellectual property (IP). Here’s a detailed comparison between the two:


Defensive Publications
Utility Models


Prevents others from obtaining a patent on a particular invention by disclosing it publicly

Provides a quicker, cheaper form of IP protection for minor or incremental inventions


Rights Conferred

There are no exclusive rights; anyone can use the invention

Grants exclusive rights to the holder to prevent others from using the invention without permission



Low cost, only publication expenses

Higher than defensive publications but lower than patents, including application and maintenance fees


Duration of Protection


6 to 10 years, depending on the jurisdiction


Geographical Availability

Globally available

Limited to specific countries (e.g., Germany, China, Japan, South Korea, etc.)

There are several databases and resources where you can find or publish defensive publications:

Questel, Technical Disclosure Commons, Prior Art Database



Choosing between defensive publication and patent application ultimately depends on the specific goals and circumstances of the inventor or company. A defensive publication is a cost-effective way to prevent competitors from obtaining exclusive rights to innovation, while a patent application offers the strongest legal protection but comes with a higher cost and time investment.

© Molecular Connections Private Limited

For more information, contact

For more updates subscribe IP Tech Insider

Also, you can place an order for your search on our online portal

Interested in Defensive Publication and Patent Application ? Reach out to us.