Industrial companies with a patent department

In large industrial companies with their own patent department, a wide variety of ideas and inventions frequently arise which need to be evaluated as far as their further use is concerned. For certain inventions, the use of strategic publications is a cost-effective and quick alternative to property rights and other methods of exploiting an invention. The strategic property-rights portfolio is thus advantageously extended to include them.

A recent study by the Technical University of Munich, in which 37 large companies were surveyed regarding the subject of "strategic publication", showed that 70.3% of the companies surveyed use the tool (13).

Industrial companies without a patent department

Small and medium-sized companies or enterprises (SMEs) are highly dependent on their intellectual property being protected in order to be able to hold their own in the market. However, a recent research report by the Federal Ministry for Economics and Technology came to the conclusion that SMEs are at a disadvantage as against large companies in our patent system. In this regard, it recommends abandoning the strong focus on patenting and devoting more attention to alternative concepts such as maintaining secrecy and strategic publication (4).

Alternatives are of particular interest to SMEs in particular on account of the high costs of patents. A survey at the ZVEI (Association of the Electrical and Electronics Industry; approx. 1600 members) has shown that 31.8% of the companies surveyed which have fewer than 200 employees use the tool of "strategic publication". This figure is as high as 42.6% in the case of companies with more than 200 employees (13).

Patent attorneys

In certain situations, strategic publications, as an alternative or in addition to a patent application, offer the most expedient means of exploiting an invention.  Patent attorneys have a duty and a desire to advise their clients in the best possible manner in accordance with the circumstances of each specific case.  In particular, private individuals and sole traders often do not have the financial resources to have all of their ideas patented. For example, it may be advantageous to make publications of additions and peripheral ideas relating to an existing patent of your own. This makes it more difficult for competitors to assert patent claims in the same subject area and your own patent becomes more valuable. In addition, strategic publication in parallel with an ongoing patent application provides a great deal of potential. This creates internationally recognized prior art even during the phase in which the Patent Office maintains secrecy, and "obvious" inventions cannot be granted in this period either.

Open source users

Applying for conventional property rights such as patents is categorically rejected by the open source community. Given that patents can be granted in respect of software in the USA and also in Europe, the open source community sees itself as being threatened by patents which are granted in respect of their own content which has already been published. In this case the grouping often lacks verifiable documentation about the date and scope of the publication. These third-party patents threaten to weaken the dynamism of software development generally and to deal a blow to the open source movement. According to a research study by Dr Henn of the Technical University of Munich, "a defensive publication, which of course has to occur in such a way as to ensure that the Patent Offices are aware of [what has already been invented in the preceding period], promises to provide [...] assistance here (10)".

Universities and institutions

Public institutions, universities and research institutions which do not pursue exclusively economic objectives have a duty to society to make the results of their research available to the general public - ultimately these research results are often financed by public money and their primary purpose is scientific progress.

In particular in the context of collaborations between public research institutions and companies from the private sector, the question is soon asked: To whom do the rights over the inventions made within the collaboration project belong? An answer to this question, which takes into account the higher objective, namely scientific progress, is: No conventional property rights are applied for, but rather the research results are made able to be used by the general public with the aid of strategic publications. As a result, the usage rights over the inventions are free and the scientific findings and inventions can be used by anyone for further developments and further research work.

The opinion advanced here is also supported by Dr Henn (Technical University of Munich), in whose opinion research institutions often pursue objectives which "can only be achieved if they make their innovations into goods that are common to all. Use defensive publications to prevent patenting by third parties (10)."