Defensive Publication

Defensive publication is the means by which scientists ‘disclose details about their innovation to the public, thereby preserving their freedom to use the innovation by preventing others from patenting it’ by making it “prior art” that destroys the novelty and precludes others from taking out a patent over a similar concept/invention. In addition to serving the function of communicating their research results to the scientific community and the public in general, it can preserve them as public goods. To learn more about this topic, see: Defensive Publishing: A strategy for Maintaining Intellectual Property as Public Goods by S Adams & V Henson-Apollonio.

Because patentability of an invention often depends on whether it is new when compared to existing knowledge or prior art, the corollary is that if it can be shown that anyone skilled in the field would have foresaw the invention by studying contemporary literature, the subject-matter of the application would fail the criterion of novelty. However, the underlying assumption to this assertion is that the patent examiner would have all the necessary facts and information which has been published in the world to make such an analysis when scrutinizing the patent claims and specifications. This is, however, often a difficult, if not unrealistic task. In an effort to ensure that its technical and scientific findings are before the patent examiners, the International Crops Research Institute for the Semi-Arid Tropics (ICRISAT) of the CGIAR, with the sponsorship of CAS-IP, has now entered into a Memorandum of Understanding with the European Patent Office to place its technical reports within the latter’s searchable non-patent literature. If your organisation is interested to find out how to do this, please contact CAS-IP directly.