1. Understanding Intellectual Property
2. The Concept of Prior Art
3. How to Submit Your Paper
4. The Dangers of Seeking a Patent After Publication

Learning how to publish an invention involves claiming ownership of your intellectual property, protecting your rights, and keeping anyone else from claiming it as his or her own. The rules of elementary school apply: Do your homework, write your name on it, and turn it in. However, the process of publishing an invention is detailed and complex, so you must take care to avoid expensive errors in the process.

Understanding Intellectual Property

Protecting intellectual property (IP) rewards those who pursue innovation and those who invest in new inventions. However, protecting IP rights can have negative consequences for the market since it limits access to certain technologies. To achieve the delicate balance of access to innovation and protection of rights, inventors need to understand:

  • Traditional systems like patents, trade secrets, trademarks, and copyrights.
  • Other methods to preserve access to new developments.

The Concept of Prior Art

In order to decide whether you should publish or patent your creation, you must be able to describe how your invention is useful, non-obvious, and new. Proving that it is new is the hardest part. This takes a great deal of research, an effort that goes far beyond an online search. You can use the United States Patent Database or a similar tool from another country. The more databases you check, the better. This step is critical because if your invention is not new, you can't claim ownership of it.

The definition of prior art involves more than patents. It can also include white papers, the results of a study, user guides, and presentations. You have to search thoroughly for any ideas that might affect your invention's "newness" and your ability to claim ownership of it. Even if you know where to look for prior art, you need to know how. The best way to search is a combination of keyword, natural language, and Boolean queries. Get creative for the most thorough results.

Once you've completed your search for prior art and found nothing that challenges the originality of your product or service, you're ready to complete the documents and submit them to protect your IP. When other inventors perform a prior art search of their own, you want them to find your creation and avoid treading on it. Taking the right legal steps under the guidance of a qualified professional lets you patent your invention correctly. Depending on where you apply, this will put your invention in a patent database.

How to Submit Your Paper

You can defensively publish your paper in an accessible database that includes patented and nonpatented literature. Sometimes this process is faster and more affordable than over-patenting as it makes your idea easily discoverable and keeps others from claiming it as their own. A defensive publication typically includes:

  • The problem or need you have identified.
  • The new solution you have found.
  • The steps you will take for implementing your solution.
  • Calculations and illustrations to support your ideas.

The Dangers of Seeking a Patent After Publication

In the United States, a patent application must be filed within one year after the date of any publication, known as the Bar date. Note that all foreign patent rights are lost if publication happens before the patent application, even by just one day. However, once the United States patent application is filed, international agreements establish a one-year period for filing foreign patent applications.

For this reason, it's usually wise to file a patent application before any publication. Going in this order, you can make a decision about whether foreign patent rights will be important to your project. In some fields, worldwide patent rights are very important. If it turns out that your invention cannot be patented, it's less likely to be eligible for licensing and monetization.

An invention is considered published if it forms "part of the state of the art." In the United States and most other countries, the state of the art is defined as "everything made available to even one member of the public anywhere in the world by means of a written or, visually displayed oral description, by use, or in any other way."

If you need help learning how to publish an invention, you can post your legal need on UpCounsel's marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Menlo Ventures, and Airbnb.