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From my limited understanding of the patent system, if I were to invent something but I didn't file for a patent, then someone else could still patent my idea. If I want to keep my invention open, is there a way to release it straight into the public domain which keeps anyone else from filing a patent on it?

I know there's licenses like GPL and BSD but I always assumed that was for copyright and not patents. Could that also be used for patents?

cspirou
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  • A defensive publication would "date" your invention and credit you as the inventor. This could (would)(should) serve as prior art against any another application that tries to patent your exact idea. – Ron J. Jul 30 '13 at 12:32

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With GPL etc. you are saying "I do claim my copyright rights and having claimed them I now give anyone who abides by the following rules the right to do the following things with the material I have copyrighted". The nearest equivalent with an invention would be to actually apply for and get a patent and then declare that you were offering a no-cost license to your patent rights to all comers who agreed to abide by your rules of openness, sharing, etc.

More practically, you would "publish" your work. There are other posts here about this but all that is required is that you get a full disclosure out in the public in a way that it is considered published under the patent rules and, to be of real value, is somewhere that a future patent examiner is likely to be looking. In that case you are not constraining improvements to also be open or inventors to give away their production diagrams, as in the analogy with copy left.

George White
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  • Especially now with the transition to first to file, it is in your interest to publish, or make public your work ASAP. This ensures that someone can't claim an earlier filing date that they owned the patent before you got around to putting in the public domain. – naven87 Jul 27 '13 at 23:03
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Technically, if you invent something before anyone else, then no one else should be able to get a patent on it. If someone else does get a patent, because they missed your prior art, the presence of your prior art should invalidate their patent.

The simplest thing to do would be to release your work, like public domain, or GPL, and make it very public, so that a subsequent patent wouldn't be granted / valid.

McKay
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  • There is a huge difference between a patent not issuing in the first place and it issuing, but someone who does some digging turna up somethng they think can show it should be invalidated. Issued patents are presumed valid. – George White Jul 26 '13 at 19:48
  • Yes, but legally, prior art invalidates the patent, though that might be very difficult to do/prove. – McKay Jul 26 '13 at 21:19
  • "Anticipating prior art" that is enabling can be used in a patent infringement case by a defendant to try to show invalidity of specific claims as a defense. Prior art that, in combination with other prior art, tends to show obviousness of specific claims can also make up an invalidity defense. – George White Jul 26 '13 at 23:05