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Defensive publication
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Defensive publication

by minerva on Thu Jul 04, 2013 7:04 pm

Hi everyone. I wasn't really sure what forum to put this in, since it isn't really a technical project question.

Suppose you've got an electronic hardware project. (Actually, it has a microcontroller, so it has some part of its functionality determined by the firmware, too.)

Suppose that you want to make a defensive publication - that is, a publication of the IP for the purposes of establishing that, at this point in time, you've invented this IP, thus preventing (in theory) somebody else patenting the same thing in future, because it's publicly known that you have prior art.

How much content, and what sort of content, would you typically need to publish for this purpose, for a typical electronic device?

Would publishing a schematic be sufficient? I suppose that publishing full PCB artwork and manufacturing-ready Gerber files is overkill. Or would a high-level block-diagram be sufficient? How about a page of text describing the device? Or some photos or video showing the device in operation, showing that it exists? Is low-level detail really required?
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Re: Defensive publication

by wethaguy on Thu Jul 04, 2013 8:38 pm

March 16, 2013, the game changed. The patent system is now first-to-file, not first-to-invent. Publication maybe protects the invention for a year, maybe. Provisional patent application seems to be a better route for protection.

Open-sourcing the project might be the best option. Licensing to well-known distributors (i.e. Adafruit) can drive sales for current and future widgets you have with little effort on your part. If you're widget is worth patenting, somebody better equipped to market your idea can slightly modify the process and patent and mass sell it in competition with you. Who will win there?

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Re: Defensive publication

by adafruit_support_mike on Thu Aug 01, 2013 4:41 pm

There's always been a first-to-file aspect to the patent system, as demonstrated by countless small companies who had their own inventions or processes patented out from under them.

While the new rules do change some things, I'm pretty sure they don't eliminate the concept of prior art. Nobody can retroactively patent the wheel and start charging everyone royalties.

All the rules surrounding patents are complicated, and I don't even play a lawyer on TV, so my opinions on the subject are nothing you'd want to rely on. Your best bet would be to talk to the people who really know that stuff:
When you void a product warranty, you give up your right to sue the manufacturer if something goes wrong and accept full responsibility for whatever happens next. And then you truly own the product.

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Re: Defensive publication

by adafruit_support_bill on Fri Aug 02, 2013 6:14 am

Nobody can retroactively patent the wheel and start charging everyone royalties.

Unfortunately, that pretty much describes the majority of the software patents I have analyzed. :(

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