Since different legal regulations apply internationally which have an effect upon the territorial effectiveness of strategic publications, the essential patent-law background on the subject of strategic publications is set out below for Europe, the USA and Japan - the three regions of the world with the highest levels of patent activity.

Patentable invention (EPC Art. 52): European patents are granted for inventions in all technical fields as long as they are novel, are based on an inventive step and are industrially applicable.

Novelty (EPC Art. 54): (1) An invention shall be considered to be novel if it does not form part of the state of the art.

Prior art (EPC Art. 54): The state of the art shall be held to comprise everything made available to the public by means of a written or oral description, by use, or in any other way, before the date of filing of the European patent application.  (3) Additionally, the content of European patent applications as filed, the dates of filing of which are prior to the date referred to in paragraph 2 and which were published on or after that date, shall be considered as comprised in the state of the art.

Inventive step (EPC Art. 56): An invention shall be considered as involving an inventive step if, having regard to the state of the art, it is not obvious to a person skilled in the art.  If the state of the art also includes documents within the meaning of Article 54, paragraph 3, these documents shall not be considered in deciding whether there has been an inventive step.

Publication by the Office: Patent application documents after 18 months.

Grace period: no.

Examination for novelty: the entire prior art is relevant for the purposes of the examination, including unpublished patent application documents (before the 18 months have elapsed).

Examination for inventive step: Prior art without unpublished patent application documents.

Creation of a strategic publication in European patent law:

1) Before the grant of a third-party patent as observations within the meaning of Art. 115 EPC before the EPO.

2) After grant of a third-party patent:

• In proceedings before the Office: Within nine months of the publication of the mention of the grant of the patent, by any person in the central opposition proceedings before the EPO (Art. 99(1) EPC).

• In court proceedings: After the opposition period has ended, by way of a national nullity action.

Inventions patentable (35 USC; US-PatG, §101): Whoever invents or discovers any new and useful pro­cess, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.

Conditions for patentability; novelty and loss of right to patent (§102): A person shall be entitled to a patent unless (a) the invention was known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for patent [...].

Period preclusive of prejudice to novelty (§102): A person shall be entitled to a patent unless (b) the invention was patented or described in a printed publication in this or a foreichn country or in public use or on sale in this country, more than one year prior to the date of the application for patent in the United States [...].

Publication by the Office: Patent application documents after 18 months.

Grace period: yes, one year.

Examination for novelty and inventive step: the entire prior art is relevant for the purposes of the examination, including unpublished patent application documents (before the 18 months have elapsed).

Creation of a strategic publication in US patent law:

1) Before grant of a third-party patent:

• By all means by way of a protest during the period in which a patent application is pending, up until when it is published. § 1.291 Patent Rules before the USPTO.
• After the publication of the US patent application, within two months, as information relevant to the examination pursuant to § 1.99 Patent Rules before the USPTO.

2) After grant of a third-party patent:

• In proceedings before the Office: Without limitation in terms of time, within the context of reexamination pursuant to §§ 301-318 US Patent Act before the USPTO.
• In court proceedings:
  1. By way of a declaratory judgement suit pursuant to 28 U.S.C. § 2201 before a US Federal District Court.
  2. As a defence of invalidity pursuant to § 282 II (2) US Patent Act when defending a patent infringement action.
  3. By way of a counterclaim as a free-standing challenge to a patent infringement action.

Particular feature: "Statutory Invention Registration (SIR)": Opportunity to file defensive publications officially at the USPTO. Complex and lengthy procedure which has to date not become widespread because of various drawbacks.

Conditions for Patentability (JPatG, Gesetz Nr. 121, §29):
(1) An inventor of an invention that is industrially applicable shall be entitled to obtain a patent for the said invention, except for the following: (i) inventions that were publicly known in Japan or a foreign country, prior to the filing of the patent application; (ii) inventions that were publicly worked in Japan or a foreign country, prior to the filing of the patent application; (iii) inventions that were described in a distributed publication, or inventions that were made publicly available through a telecommunications line in Japan or a foreign country, prior to the filing of the patent application.

(2) Where, prior to the filing of the patent application, a person ordinarily skilled in the art of the invention would have been able to easily make the invention based on an invention prescribed in any of the pa­ra­graphs of the preceding subsection, a patent shall not be granted for such an invention notwithstanding the preceding subsection. [...]

Exception to lack of novelty of invention (JPatG, Gesetz Nr. 121, §30): (1) In the case of an invention which has fallen under any of the paragraphs of Section 29(1) by reason of the fact that the person having the right to abtain a patent has conducted a test, has made a presentation in a printed publication, has made a presentation through electric telecommunications lines, or has made a presentation in writing at a study meeting held by an academic group designated by the Commissioner of the Patent Office, such invention shall be deemed not have fallen under any of the pa­ra­graphs of Section 29(1) for the purposes of Section 29(1) and (2) for the invention claimed in a patent application which has been filed by the said person within six month from the date on which the invention first fell under any of those paragraphs. [...]

Publication by the Office: Patent application documents after 18 months.

Grace period: yes, six months.

Examination for novelty: the entire prior art is relevant for the purposes of the examination, including unpublished patent application documents (before the 18 months have elapsed).

Examination for inventive step: Prior art without unpublished patent application documents.

Creation of a strategic publication in Japanese patent law:

1) Before grant of a third-party patent:

From the point at which the Japanese patent application becomes pending, as information relevant to the examination pursuant to § 13 Japanese Patent Act - Implementing Regulations before the JPO.

2) After grant of a third-party patent:

• In proceedings before the Office by way of nullity proceedings pursuant to § 123 Japanese Patent Act before the Board of Appeal of the JPO.
• In court proceedings:
  1) As an argument against a patent infringement action (cf. § 104(1) Japanese Patent Act), whereby the decision that is then issued only has legal effect as between the parties concerned.
  2) By means of an action for a declaration of non-infringement of the patent which, however, is only permissible if the litigation is ready to be decided and no decision about the validity of the patent is to be made.