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If you talk to a corporate patent attorney about why the company files patents, you may hear things about building a defensive portfolio, creating valuable long-term assets, or protecting key developments from exploitation by competitors. But increasingly the top priority of the company regarding IP is âFreedom to Operateâ.
Put simply, most businesses just want to operate their core business well and not be impeded from doing that. Patent licensing/revenues are not a major consideration for most and litigating patents are incredibly expensive (monitoring the market for violations and engaging in multi-year complex lawsuits, etc). Even filing a patent typically takes about three years and around $20,000.
The United States used to be a âfirst to inventâ regime, which meant that if you had invented something and carefully recorded it, say in a signed and dated journal, that could be pulled up later and used as prior art. Whoever thought of the idea (and wrote it down) first had priority. This meant that the main focus in innovation was simply writing down your idea somewhere. The downside of this was having to undergo discovery for these journals and this work in order to maintain freedom to operate if some counterparty were to hit you with a bogus infringement suit for IP that you had already invented.
On March 16, 2013, the US became a âfirst to fileâ regime, which instead gives priority to whomever first files an application for the intellectual property with the PTO. Now simply having well-organized inventor journals is not sufficient to defend your IPâââyou actually have to have it filed, or otherwise available to an examiner as prior art in order to block a competitorâs claim.
The latter part is the interesting bit that is yielding a shift in IP strategy at some of the larger companiesâââif a large companyâs primary goal is to ensure freedom to operate (vs exclusive use of the idea) a full, formal patent may be overly cumbersome and expensiveâââsimply publishing the intellectual property (in the commons, royalty-free for anyone to use) in some well-defined location that is known to patent examiners could suffice.
Thatâs exactly what the Technical Disclosure Commons site is (or âTDCommonsâ). Itâs a central repository for companies big and small to post âdefensive publicationsâ (or âDPubsâ) that contain potentially patentable material where the author or authorâs company want to preserve freedom to operate cheaply by making the material freely available to the public. This then gives incontrovertible evidence of a publication date for use in establishing prior art.
One of the best parts about this as an inventor is that it is not only much faster and cheaper to file DPubs but that itâs totally okay to share DPubs with fellow inventors and read other peopleâs DPubs, since all the IP is free-to-use.
That last bit should make you wince a little bit, since the ostensible point of the US Patent & Trademark Office was to allow inventors to freely share technical details with each other without fear of being ripped off, but any modern corporate patent lawyer will tell you that the first piece of advice they give to new inventors to the company is to never read other peopleâs patents. The reason why is that if a counterparty can show âwillful infringementâââânamely that a counterparty read a patent, implemented the patent, and did not license the use of the patentâââthat not only are there treble damages but thereâs also an inversion of the burden of proof: the violating party that read the patent has to prove to the courts that even though they were aware of the other partyâs patent, the invention doesnât violate any of the claims of the patent. (In a typical case it is up to the plaintiff to demonstrate that the defendantâs invention constitutes a use of the plaintiffâs IP.) This makes the case much more risky and expensive and consequently the best way to ensure that your inventors arenât âtaintedâ with other partyâs IP is to have them never read any patents, ever. Sigh.
A disclosure commons gives us back this open IP sharing environment, at the price of loss of exclusivity and control. For most businesses simply looking to preserve their own freedom to operate, it may be a tradeoff that makes sense.
To wit, here are some of my own TDCommons publications, which you are free to peruse and enjoy with no fear of IP taint: (note the author is listed as âNAâ for many of these; several companies decide to mask authors when publishing)
- âRemote ranging using vibrations and ultrasonic transmissionâ: What if you could use wideband calling features to interrogate the remote end of a phone call?
- âLaser Guidance to Project Planned Human or AGV Pathsâ: What if you could direct people in a warehouse-type environment with giant laser pointers on the ceiling?
- âRack Transporterâ: What if you could move a rack full of servers from one place in the datacenter to another while the rack was still actively serving traffic?
- âAutomatic Hardware Acceleration of Computational Hotspotsâ: What if you could automatically offload parts of compute jobs to special-purpose hardware accelerators?
- âPROCESSOR CACHE SNAPSHOT AND RESTOREâ: What if the OS + CPU captured a processâs full cache state and restored it when context switching?
- âSecure Separation and Control of Multiple Virtual Machinesâ: What if your phone had a physical switch to change modes from work to play to anonymous, such that these modes were sandboxed from each other?
TDCommons: A Treasure Trove of IP was originally published in Hacker Noon on Medium, where people are continuing the conversation by highlighting and responding to this story.
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