Strategic publications are, subject to certain preconditions, an alternative to patents and other property rights and to the maintenance of secrecy. However, sometimes a strategic publication in parallel with a patent application also brings about the desired effects. A few examples are set out below:

In general: if the protection of your own freedom to operate is important and if no exclusive rights are necessary or desired, strategic publication offers an interesting alternative to applying for a patent.

Example 1: Grant of a property right improbable

You develop a technology and would like to have it protected by as strong a property right as possible (for example a patent). However, searches show that it is highly improbable that the Patent Offices will grant the patent sought. There may be various reasons for this. For example, there is already a large amount of prior art in this field and it is unclear whether the invention has a sufficient level of "inventive step" in comparison with the prior art, or the technology falls within areas which are not patentable or are patentable only under very specific conditions (e.g. software, business methods etc.). In this case, the very high degree of expense and work associated with an application for a patent are juxtaposed against very low chances of success. As, however, it cannot be completely ruled out that a patent may be granted, a strategic publication protects your idea against third-party rights of prohibition in an effective, quick and cost-effective manner.

Example 2: Exclusive rights cannot be asserted

Your company uses an internal method for manufacturing a product which is particularly advantageous for the purposes of the manufacture. A patent for the manufacturing method is sought. However, from looking at the product it is not possible to see how it was manufactured. There is now the problem that it would be impossible or very difficult to prove that a competitor is infringing a potential patent as the products provide no indications of the method of manufacture. You would therefore hold a patent over a technology which in practice you could never enforce, because you simply cannot tell whether an infringement is taking place (no exclusive rights, no royalty income, etc.). A strategic publication is the more suitable form of protection for inventions such as these.

Example 3: Peripheral ideas / further developments

You hold a strategically important patent in a highly competitive market. Competition and general research activities necessarily result in the invention of minor improvements and modifications to the technology protected by the patent. These offer competitors the opportunity to apply for patents whose content is very close to that of your patent. Patenting each small further development yourself would be unaffordable. The strategic publication of minor further developments is a proven means of protecting your own strong patent from being "surrounded" or "riddled with holes" by third-party patents.

Although property rights such as patents are themselves part of the prior art, your own freedom to operate is only protected after the application documents are published after 18 months by the Patent Office. Within those 18 months, the parallel publication of the application documents (in their entirety or possibly extracts thereof) makes sense in certain situations.

Example 4: International protection

You apply for a patent, but on a restricted basis in territorial terms. I.e. you apply for a patent just in Germany, for example, as you consider it to be your principal area for sales or else the costs of patenting in other countries are simply too high. After the patent has been applied for, the patent specification is kept under lock and key by the Patent Office for 18 months and is only then made available to the public. Only then does your patent become searchable prior art as a result of its being disclosed, and internationally no further patents can be granted in respect of the technology. During the 18 months for which secrecy is maintained by the Patent Office, it is still possible to obtain patents in other countries in which you have not applied for patent protection. Making a strategic publication in parallel makes your technology into written prior art from the date of publication and thus no longer patentable anywhere in the world.

Example 5: Protection from obvious patent applications

After you have applied for a patent, it is examined by the Patent Offices and, in the best case scenario, granted. After the application is made, the documents are kept under lock and key by the Patent Office for 18 months. Only then are the application documents published. From the application date, a patent offers you protection against the grant of third-party patent applications which are "not novel" over your patent from a patent-law perspective. In the examination for novelty, a 1:1 comparison of two documents takes place, i.e. it is only possible for patent applications not to be granted if all of the aspects of the third-party application can be gathered from your previous application. The granting of "obvious" patent applications is still possible up until the publication of your patent specification. The examination for obvious inventions includes a so-called mosaic examination, i.e. a number of documents are considered and the invention must not be evident to a person skilled in the art on the basis of the combination of their contents. A written publication in the form of a strategic publication allows you to protect your invention against the grant of obvious third-party patent applications even during the period in which it is held under lock and key at the Patent Office.

It is difficult and costly to keep knowledge secret over the long term. Knowledge often leaves a company in the widest variety of ways, and thus keeping unprotected knowledge secret on a permanent basis poses the risk of a competitor itself acquiring protection for the invention and prohibiting you from using it.

Example 6: The probability of maintaining secrecy is too low

You invent a technology and would like to retain your head start in terms of knowledge over the competition. You therefore seek to keep the knowledge secret. In general, maintenance of secrecy is a risky and burdensome process as you run the risk of the knowledge nevertheless getting out and of a competitor applying for a property right in respect of the technology and, in the worst case scenario, prohibiting you from continuing to use it. In order to maximize the probability of actually maintaining secrecy you must adapt your internal information systems to ensure that the knowledge is stored securely, you must subject your employees to confidentiality obligations by means of contractual provisions (even after they have left your company, taking into account the strict statutory provisions relating to non-compete clauses pursuant to § 74 f. HGB (German Commercial Code)), and you must check that secrecy is actually being maintained and take action against any breaches. Even if you take account of all of the factors referred to, the risk still exists that the invention will be duplicated and that a competitor will apply for a property right in respect of it. Thus, the maintenance of secrecy must in general be examined very carefully, and the advantages of a strategic publication may prevail.