Forward-Publishing Patents: A Way to Tell Competitors "Stay Out"?

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Will forward-publishing your patent help or hurt you in the long run? Sonos’ announcement this week that they will forward-publish patent applications has created quite a debate in the patent realm.


The best-case scenario when forward-publishing a patent is that the patent largely reduces competition and gains additional funding, but the worst-case scenario could result in large monetary loss.

Ideas are the lifeblood of innovative companies, and protecting them is at the center of such companies’ success.  There are several methods companies may use to protect the ideas within their patent applications for as long as they can.  Some will avoid recording the assignment under the company’s name, leaving only the inventor identifiable on the patent so that the company name will not publicly be on file at all. Others file a notice of non-publication with the application, which tells the USPTO not to make the application publicly available until after the patent issues. (Applications are traditionally published by the USPTO approximately 6 months after filing.)
 
But why not publish the applications?  Forward-publishing a patent allows the world to see the patent activities within a company quite early, possibly resulting in negative consequences for the institution.  The fear associated with applications being publicly available is that a competing company may use the ideas in the applications as a launching pad for their designers.
 
However, if the patent is well-written, forward-publishing has some advantages. A well-written patent has the capability of warding off competition and preventing other companies from receiving funding. If savvy investors investigating an opportunity see that another company has already filed strong patents in the same space, they will be less tempted to invest in a competitor in that same space.  Additionally, forward-publishing can show competitors that a company is confident they will attain a broad patent, potentially keeping those competitors from entering the space. In these scenarios, forward-publishing is a way to tell competitors and investors: “Stay out!”
 
The best-case scenario when forward-publishing a patent is that the patent largely reduces competition and gains additional funding, but the worst-case scenario could result in large monetary loss. So is the risk worth the reward? The answer is… it depends on the patent. Forward-publishing a patent should be considered on a patent-by-patent basis.

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[JD Supra's Law Matters series asks experts for their quick take on popular news of the day, and specifically how such matters affect people in their personal or professional lives. Stay tuned for other posts in the series.]


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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