Forward-Publishing Patents: A Way to Tell Competitors "Stay Out"?
Authored by Paul Davis.
On March 10, 2014, Sonos announced it would forward-publish its patent applications before they would traditionally be available to the public. This has given rise to quite a bit of discussion in patent legal circles. What are the advantages and disadvantages? Should you or shouldn’t you? Are you giving a leg-up to the competition or telling competitors to “Stay Out”?
The best-case scenario when forward-publishing a patent is that the patent largely reduces competition and gains your company additional funding. 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.
The worst-case scenario is that a competing company may use the ideas in the applications as a launching pad for their designers and block a move your company has been planning. If the patent has weaknesses which can be exploited, forward-publishing could result in large monetary loss.
So is the risk worth the reward? The answer is (unfortunately)… it depends on the patent. Forward-publishing a patent should be considered on a patent-by-patent basis and you should discuss the options with your counsel before proceeding.
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