Defensive Publishing - Towards Balanced Intellectual Property Strategies

• Applicant: Professor Dr. Christoph Ann
• Subject Area: Private Law
• Term: from 2006 to 2008
• Project identifier: Deutsche Forschungsgemeinschaft (DFG) - Project number 29753591

The term defensive publishing denotes the publication of inventions with the purpose of creating prior art, i.e., of preventing the granting of patents for this invention. In some industries, notably electronics, defensive publications seem to play an important role, in particular given the rise of patent sharks or trolls . Our preliminary research indicates that some larger firms in this industry publish as many as 30% of their inventions defensively. Yet, research on defensive publishing is scarce. Empirical work hardly exists.Our project aims at filling this gap. Since defensive publishing is relevant for innovation management, in particular in the field of electronics, and strongly related to patent law, applicants from these three fields work together. We analyze to what extent defensive publications are used and for what purpose exactly; what means of defensive publishing are used, what their characteristics are, and how well each is suited for reliably establishing prior art. Furthermore, we address the use of defensive publications in the context of standardization and of university inventions. Methods to be used are qualitative and quantitative empirical work, legal analysis, and game-theoretic modeling.Our research has practical implications for patent applicants, patent authorities, and policy makers. In particular, we aim at offering firms as well as universities a more balanced and complete view on the strategic options of how to deal with their intellectual property.

• DFG Programme: Research Grants