How Do I Put an Invention Into the Public Domain?

Nefarious Wheel writes "I have a couple of inventions — mechanical devices, based on physical principles — that I believe could transform certain aspects of industry. The trouble is, I can't afford to file patents, and even if I could, I'm not sure that would be the best way for these devices to be made available as widely as I'd like. Is there some way to publish the details of these innovations in the public domain in such a way as to protect them from being snaffled away by some patent troll? I'd be happy with a contribution (or simple attribution) model for recompense, which could be zero to whatever, but that's not as important to me as getting the ideas out there for anyone who wants to use them. This isn't copyright, and I know of no patent equivalent to Creative Commons. In short, what's the best way to protect an invention against someone filing a patent on it, short of patenting the device yourself? Can this be done?"

Comments

JUST publish it, make it "prior art"

[nweaver]

Once something is published, it becomes "prior art" and someone else can't patent prior art and obvious extensions to prior art.

And also once you publish it, you can't file for a patent on it outside the US, and you can only file for a US patent within a year.

Re:JUST publish it, make it "prior art"

[Teancum]

Once something is published, it becomes "prior art" and someone else can't patent prior art and obvious extensions to prior art.

And also once you publish it, you can't file for a patent on it outside the US, and you can only file for a US patent within a year.

While in theory this is technically true, the reality of it is that filing a patent... even if you never intend to collect royalties or even sue somebody for patent infringement if you discover it in the future... is still the most viable option.

One situation I had with a former employer was an expired patent application that hung in our engineering conference room for years.... where the company was sued by a patent troll who had filed a nearly identical patent application for the very same concept and was claiming prior art. In that case, the troll was hosed (legally speaking) because prior art was clearly established and certified by the USPTO... showing that the patent was clearly invalid and forcing the judge to dismiss the case. The patent attorney hadn't even listed this prior patent as a disclaimer of prior art when a simple search of the patent database would have turned it up.

The company I worked for would have been taken to the cleaners if it wasn't for that patent which had been filed by an earlier employee. Yeah, it was fun to see first hand how valuable defensive patents could be... and it was even funnier to see that plaque temporarily be taken down as it was presented in court as prior art. Yeah, that step wasn't strictly necessary, but it made an impression on the judge as well that proved to be quite positive.

In this case, you need to use the patent system against itself just as the GPL uses the copyright system against itself. The patent system respects itself, but it doesn't think stuff created out of this environment is worth much.... witness some of the idiotic patents that have been filed such as one about ROT-13, one-click shopping, and the LZW algorithm. While all of these had clear prior-art in published journals (like ACM publications), that hasn't been sufficient to prove prior art in a legal sense, unfortunately, and patents were not only granted but enforced.

And no, I don't love the patent system (I wish it were completely abolished), but it is an unfortunate evil in today's engineering environment. I have yet to meet a single individual that I know personally or have been able to shake their hand who has made a single penny off of a patent, yet I know dozens of individuals who have had them granted and have even developed patent-worthy concepts of my own.

Publish the invention

[Steve1952]

You can put an invention into the public domain by simply publishing it and then failing to file a patent on it. The main thing here is to find a low cost forum that will preserve your publication for a long time.

Re:Publish the invention

[TooManyNames]

This would be the best way to go. Once you've published your work (assuming that your work doesn't infringe on other existing patents) it will be in the public domain and should constitute prior art. If someone were able to obtain a patent on your published work (the patent office can't check everything) it would be easy to overturn simply by pointing to whichever journal contains your paper. Moreover, the US gives you up to 1 year after the date that you publish if you (the inventor) later decide to file for a patent*.

*This does not hold in other countries

Re:Publish the invention

[Teancum]

This would be the best way to go. Once you've published your work (assuming that your work doesn't infringe on other existing patents) it will be in the public domain and should constitute prior art. If someone were able to obtain a patent on your published work (the patent office can't check everything) it would be easy to overturn simply by pointing to whichever journal contains your paper.

This is easier said than done. While this is a legitimate method of trying to protect yourself by publishing a concept on a blog or something else that is clearly available in the public domain, it still won't protect you from hard-core patent trolls.

I wouldn't claim this as the "best way to go", but it clearly is a much cheaper option than the better way, which is to simply file a defensive patent. Once your idea is in the patent system, you are under some sort of protection... and once you have been granted a patent it becomes much harder for somebody to patent a similar concept without significantly narrowing the scope of any future patent.

Have to publish it in the right place

[tepples]

But patent examiners aren't likely to find such published prior art unless you publish it in something that patent examiners actually read. Google defensive publication brought me a Wikipedia article explaining the concept and a short guide.

Re:Have to publish it in the right place

[foniksonik]

How about just publishing to Wikipedia? Seems like a place that a patent examiner might look when investigating prior art. Especially if someone also publishes an article on how Wikipedia is being used to publish "public domain" prior art and then adds a reference to examples which could turn into a big list of inventions...

If your patent uses a basic concept add a cross link to that article as well so that it's more likely to show up in a search on said concept and of course cross link to prior art to your own invention as well.

Re:Have to publish it in the right place

[Anonymous Coward]

You call prior art if your idea, which you have published or implemented in some way, is patented by someone other than you. In this case you use prior art in a civil suit, and if you prove prior art the patent will be invalidated. If you are worried about proving prior art you can get what is essentially a temporary, but unproven patent (usually they are in the range of 5 years). This isn't an actual patent, but it is usually what has been taken when you see "Patent Pending" on something. Because this temporary patent has been filed with the patent office, in the case of a civil suit you can quickly and more easily prove you created whatever it is you created before the other patent was applied for.

In general you don't actually need a patent anymore, and even if you do certain countries don't actually respect international or foreign patents in the first place (China and Korea are two countries which will laugh at you if you bring patent infringement claims to them).

Re:Have to publish it in the right place

[Asic Eng]

I think he should present at a reputable conference in his field. Not sure if Wikipedia is a good place for publishing original research - I was under the impression that's not the content they want. Also - if he publishes on such a conference the knowledge will be distributed to those able to make use of it, and it will increase his reputation - allowing him to become known, to add the publication to his resume etc.

Re:Have to publish it in the right place

[Dachannien]

The USPTO frowns on using Wikipedia as prior art.

Not necessarily. The Board of Patent Appeals and Interferences has cited Wikipedia several times. What's more, the fact that Wikipedia keeps a history allows examiners to go back to pick up the version of the page that actually counts as prior art.

The Wayback Machine on the Internet Archive is another good tool that examiners can use. It's especially good for when an applicant or company blabs about their stuff on their website and then tries to file a patent on it more than a year later.

However, when it comes to using Wikipedia as a place to ensconce your public domain invention, it's probably not the best tool for that. Wikipedia gets used a lot when an examiner doesn't understand something, but most patent applications are close enough to the bleeding edge that Wikipedia's not that great for anything but knocking out the basics or just learning unfamiliar terminology.

As for Google, more and more examiners use Google these days, but it pales in comparison to the search tools that examiners have for searching through patents, published applications, statutory invention registrations, and the abstracts of published journal articles and conference proceedings.

Ultimately, if you really really want an invention put into the public domain and don't mind the cost, a statutory invention registration is how to do it. It's cheaper than a patent application because there's no search fee involved, but there is still a fee for publication and classification. I don't know what the fee total is, but it's apparently at least $920, and you may need the assistance or advice of an attorney to help you get it in the proper form (it should look more or less like a patent application).

Re:Have to publish it in the right place

[regular_gonzalez]

This has long since been discredited, and it's simple to disprove with basic logic. What's to prevent you from mailing an unsealed envelope to yourself? The date will be on it, and then five years later you can stuff it with the details of GE's new holographic television (or whatever), seal it, and voila! You "invented" it five years previous.

statutory invention registration

[Anonymous Coward]

File a statutory invention registration with the patent office.

http://en.wikipedia.org/wiki/United_States_Statutory_Invention_Registration

Alternately, you can file a provisional patent application, and then just abandon it by not filing anything else for a year.

Either of these will become part of the patent office's database and thus will be searched by patent examiners.

Re:statutory invention registration

[cecil_turtle]

I checked out PublicPatent.org and clicked on the "Random Page" link a few times and it seemed to either go to what looked to be a page of spam for some "aaaoe" organization or a page of Chinese characters. All of the AAAOE.COM spam pages follow the same template with different keywords. There were a few other pages that looked like spam as well, I don't think I came across one legitimate article.

Research disclosure

[An dochasac]

I've used Research Disclosure publications which I'm pretty sure U.S. patent applicants are required to look through in their search for prior art.

Re:Letter bomb campaign

[kinnell]

Prior art requires that the invention be in the public domain, not simply "thought of first". This means it has to be actually published to the general public. You and I could make the same invention independently, and try and patent it, and the one to get the patent would be the first to apply, regardless of who actually made the invention first. IANAL, but I believe that in your scenario, any one of the companies would be perfectly entitled to patent the invention.

Re:Filing the patent is cheapest and most reliable

[number11]

Of course, you can also ask a notary to certify whatever method of publication you intend to use, but there are some major drawbacks. Firstly, sometimes courts only accept publications in venues which are deemed by some non-objective standard to have a wide audience. Expect to pay to be published. Secondly, the notary will want his cut. Depending on the specific details, this can actually cost you more than filing a patent.

Oh, come on. I'm a notary. If the notary wants more than a couple of bucks per copy, you need to find another notary. In my state, maximum rates are pretty much set by law, and any notary who tried to get "his cut" would be at risk of substantial legal penalties.

That said, IANAL but merely getting something notarized probably isn't going to count as "publication". The very word implies "public" distribution.

Cheaper to file and abandon

[AliasMarlowe]

Filing a Statutory Invention registration costs $920, with no discount for small entity. It's much cheaper to file an application and abandon it. Filing costs $330 or $165 for small entity (you are almost certainly a small entity). The filing fee can be higher if your application has a rather large number of claims or a complicated claim dependency structure. Here is the current fee schedule at the US PTO: http://www.uspto.gov/web/offices/ac/qs/ope/fee2009january01_2009jan12.htm

Either way, you must conform to the required format for the filing. Special attention must be given to drawings, so that labels and textual descriptions in drawings match the associated descriptions in the text specification (and all drawings must have descriptions). Drawings may NOT be in colour, or employ shading to distinguish areas - only cross-hatching or other fill patterns are allowed. The application must be accompanied by copies of any references or prior art cited. This is to ensure that your disclosure will be interpreted in the correct way later, even if you abandon it. Before it is printed, there may be requests for formal changes.

I recommend you become familiar with the Manual of Patent Examining Procedure: http://www.uspto.gov/web/offices/pac/mpep/index.htm

Re:Letter bomb campaign

[Dachannien]

The US is a first-to-invent country (the only one in the world, actually). In the US, if two pending applications claim the same stuff, an interference proceeding is held to determine who reduced the invention to practice first and/or who had a complete conception of the entire claimed invention first combined with due diligence thereafter in reducing the invention to practice.

If you invent something without filing for a patent on it, and then I invent it independently but I do patent it, then if I sue you for infringement, your defense could be that you were using the invention in the US more than a year before my filing date, or (as a more difficult approach) you could prove that I didn't actually invent it first.

Free legal advice from those who know.

[Samschnooks]

Go here and read up on it. It's free!

Good idea but wrong

[Theaetetus]

At $110 to file for a small entity, a provisional patent only costs a little bit.

I appreciate the direction you're going with this, but it won't work. Provisional patent applications are not published, and won't count as prior art.

Patent applications are published at 18 months from earliest filing date, if they're still pending. Provisionals expire in one year from filing date if they're not converted to nonprovisional, so they're not pending at the 18 month point.

Disclaimer: I am a patent agent, but I'm not your patent agent. Any observations I make are most likely correct, but are not legally binding.