The decentralized future of defensive publishing
Blockchain and IPFS: a new publishing media for prior art creation
Why defensive publishing
Defensive publishing denotes the publication of an innovation with the purpose of creating prior art thus preventing anyone (including the inventor) from patenting. This guarantees the inventor freedom to operate (FTO), that is the right to use the innovation.
Defensively publishing discloses technical information and therefore provides competitors with free access and rights the innovation. However, as the costs of patent applications and litigation continue to rise, defensive publishing is offering innovative companies an effective way of securing freedom to operate without incurring the significant efforts and costs involved in patenting.
Tom Colson: “If IBM had published disclosures of all of the incremental innovation around their pioneering technology, they could have prevented others from picket-fencing them. They would, in effect, have taken full control of the technology without putting patent resources at risk.”
“On the defensive about invention”, Richard Poynder, Financial Times, Sep 2001
In a first-to-file world, where even older innovations might be judged patent-worthy if a search reveals no published record of the invention, defensive publishing is getting more popular. However, it is neither trivial nor cheap to execute in a robust and indisputable way.
Current venues for publishing defensive publications range from traditional peer-reviewed journals to online publications. Yet, to successfully establish prior art, the discloser should pay attention to many relevant aspects that will make the difference between a well or poorly executed defensive publication.
What Makes a Good Defensive Publication?
- Timeliness
- Accessibility
- Discoverability
- Indisputable publication date
Timeliness - There may be reasons to maintain the innovation confidential until the optimal time, or circumstances might call for the material to be made public quickly and predictably. Organizations therefore need reliable publication methods with foreseeable - and minimized - lead times.
Accessibility and discoverability - For an effective defensive publication there must be no doubt that the material is available to public inspection especially by patent office examiners (if the disclosure is to serve the purpose of establishing prior art).
Indisputable publication date - In addition to controlling the timeliness of publication, it is critical to be able to prove the date on which the content was disclosed to the public and from which point it could be regarded as part of the state of the art.
Other factors to be considered:
Anonymity - Some defensive publication methods provide the option to publish anonymously. While anonymous disclosures serve the same purpose of preventing patenting, they might be preferable in competitive contexts.
Costs - High costs of the defensive publication process, both financial or in terms of the efforts required to the company staff, may affect the timeliness of the disclosure since the company will tend to delay the publication in order to avoid the need to update it.
''As we've expanded from domestic to international markets, we'd go broke if we tried to patent everything we had,'' said Bill Grieshober, senior legal counsel for Rich Products.
New York Times, Feb 2002
Blockchain + IPFS, a new publishing media for perfect prior art creation
Blockchains, and particularly public blockchains, are immutable global registries and, as such, innovators can leverage them to produce a trail of records for all their R&D activities and create timestamped proofs of existence and ownership for any intellectual property asset (e.g. an invention).
Registering a document on a blockchain means that its hash, a cryptographic fingerprint of the document, is inserted in a blockchain transaction crafted according to a specific registration protocol. The hash is usually a 256-bit string, and therefore its publication does not count as a disclosure and the related IP asset remains private.
IPFS (InterPlanetary File System) is a protocol and network designed to create a content-addressable, peer-to-peer method of storing and sharing hypermedia in a distributed file system.
The relevant feature of IPFS, besides its fully decentralized nature, is its content-addressable storage. This means that information written to IPFS can be located and retrieved using the content of the information itself. This is a huge advantage when compared, for example, to the web pages that are identified and accessed via their address (www.example.com/…/page.html) which do not depend on their content.
Therefore, IPFS enable innovators to publish their disclosures to a location that is determined by the very content of the disclosed invention. Any change in the disclosed documents, even minor ones, will move their location to an entirely new address.
Blockchain and IPFS together provide innovators with the perfect media for publishing their disclosures.
IPFS assigns each disclosed document a specific location (URL).
The blockchain will certify the publication date, the public URL where the document is available and, optionally, ownership data.
How does Bernstein fit in?
Bernstein is a simple web app that conveniently registers IP assets on the Bitcoin blockchain. The Bernstein certificates are legally recognized worldwide and independently verifiable by any third party. They can be linked one to the other to prove how a certain set of documents evolved over time.
Bernstein complements the registration of IP assets on the blockchain with the publication on IPFS, therefore companies may use Bernstein to defensively publish their innovations.
Defensive publishing methods - Comparison table
Bernstein defensive publishing
Indisputable timestamp, based on the Bitcoin blockchain
Proven public availability on the IPFS network
Fast, convenient and inexpensive
Optionally anonymous
Incremental disclosures, timely securing the largest perimeter
Support for any document format (datasets, visuals, software, ...)
No need to trust an authority or a private company
Resistance to patent trolls and predatory publishing
Effective promotion and dissemination of science
Recognition/reputation/acknowledgment
NB: Bernstein defensive publishing solutions are still in private beta, please contact us if you are interested in joining as an early user.
A decentralized approach to defensive publishing.
Bernstein defensive publishing solutions, based on blockchain and IPFS, enable companies to establish prior art, secure freedom to operate, and defend against patent trolls.
Online resources
Paper - Defensive Publishing - An Empirical Study, Joachim Henkel and Stefanie Pangerl, 2008
Paper - Defensive Publishing and the Public Domain, Sara Boettiger and Cecilia Chi-Ham, Intellectual Property Management in Health and Agricultural Innovation, 2007
Article - Many midsize companies find that 'defensive publishing' is a quick and cheap way to protect intellectual property, New York Times, Feb 2002
Article - Defensive use of publications in an intellectual property strategy, Bill Barrett, Nature Biotechnology, March 2003
Article - Tausende Forscher publizieren in Pseudo-Journalen, Süddeutsche Zeitung, July 2018
Notable experts
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