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Say that I have created a hypothetical new invention. I would like for it to be used by as many people as possible without restrictions, so I deliberately choose not to pursue a patent on it.

As described in the answers to What if I don't patent my invention?, someone else can patent my invention unless the US Patent Office is aware that there is prior art, established by me producing and selling my invention. The trouble is, I can't necessarily guarantee that they will become aware of my prior art if I'm not particularly well-known.

What can be done to ensure that the patent office knows about my prior work (which I deliberately choose not to patent) and therefore doesn't unintentionally grant a patent to someone else?

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    You can patent it and explicitly not enforce that patent. Conductor does it as well as Tesla. You basically release the patent as open source and grant wide open licenses to use that patent. A patent comes with a right to enforce it, not an obligation to. – Ron Beyer Jun 18 '18 at 3:16
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    Not sure about the US procedure, but in Germany filing a patent is a two-step procedure. The initial filing is comparably cheap, and if you do not have any intention to exploit the patent you can save the costs for the patent attorney (the risk that the formulation isn't good enough to defend the patent in court is a non-issue for you). In addition to filing the documents, for obtaining a proper patent, you need to request (and pay) the examination. (There's also a possibility (lower fees) to just request the patent office to check the state-of-the-art, postponing the full examination.) ... – cbeleites Jun 18 '18 at 10:29
  • ... you have several years to decide on this, while you application already has a file number and priority date, and there's nothing to force you going the (costly) way to a full patent application. However, your documents are filed and thus the patent office knows them (and they are part of the state-of-the art in case someone else tries to get a patent). – cbeleites Jun 18 '18 at 10:32
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    Comments are not for extended discussion; this conversation has been moved to chat. – feetwet Oct 30 '18 at 19:52
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There is a history of "giving away patents", which allows the original grantor to foster innovation instead of stifle it. Here are some examples:

  • Sealand Industries - ISO Shipping Container
    • Patented the standard shipping container, then gave away the patent royalty free, allowing a revolution in ocean going shipping. Annually it is estimated that $440 billion are shipped through these containers.
  • Tesla - 200+ patents
    • Elon Musk announced that the company "will not initiate patent lawsuits against anyone who, in good faith, wants to use our technology.".
  • Toyota - Hydrogen Fuel Cell Patents
    • Released 5,680 patents related to hydrogen fuel cells
    • Toyota also released a lot of patents related to development of the Prius

The grant of a patent provides the ability for the grantor to pursue infringement lawsuits against companies or individuals, but it does not obligate them to do so. You can give away your patent, open it up to broad licensing, or just openly state that you will not enforce any action related to the lawsuit similar to how Tesla did it.

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    Is there anything legally preventing these patent holders from turning around and then suing those people who are now using their patents? – Thunderforge Jun 18 '18 at 4:06
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    If they make a public statement about the openness of the patent, that would pretty much invalidate any lawsuit. More prudent users of the patent will get something in writing from the owner of the patent before using it in practice. You could make that a downloadable document (for example you can collect name/company/intended use and then provide an email with the release and store a copy on your side). – Ron Beyer Jun 18 '18 at 4:09
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    @Thunderforge In effect, a patent infringement lawsuit is effectively "you used my idea without my permission" (since licensing and royalties are effectively paying for permission to use the invention). If someone publicly said something to the effect of "everyone has the permission to use these things in good faith", then the lawsuit becomes less about the user proving they had permission and more about the patenter proving you acted against their permissions (i.e. you didn't act in good faith; something very, very hard to prove). – Delioth Jun 18 '18 at 13:57
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    @wedstrom It's only precisely correct in American English. – Andrew Leach Jun 18 '18 at 20:49
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Producing or selling the invention are not the only ways to establish prior art. A simple publication detailing the invention would also suffice, from a strictly legal perspective (the publication qualifies as prior art under 35 USC 102).

It is possible that the USPTO (specifically, the Examiner responsible for finding prior art to reject another application) will not be aware of the publication, and in this regard a generic publication is typically worse than a US Patent Application. It is possible to for a third party to submit prior art relevant to a pending application, but doing so would require you to be aware that there was a relevant application pending (which might not even be possible, if the application was allowed before the 18 month publication date).

However, as long as you have evidence of the date the publication was made, you could rest assured that any patent issued on the invention would be easily invalidated (assuming the patent application was submitted after your publication date). Then, if the patent owner threatened to sue you for infringement, you could show them the publication and they would likely drop the issue.

There are also options to go through the USPTO to invalidate an issued patent, such as IPRs. However, these proceedings, while not as costly as patent litigation in court, can still be quite costly and complex.

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    The goal is to prevent a patent from coming into force, given the cost of trying to invalidate it in court. I'd appreciate if you could elaborate a bit more on that part. – Thunderforge Jun 18 '18 at 3:38
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    They don't even have a good reason to search so as they earn money by granting patents and not by denying them. But saying "A simple publication [...] would also suffice" is dangerous and naive, therefore my downvote. @R.M. – Mindwin Jun 18 '18 at 15:29
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    While this answer is true, what a patent troll will do is not try to patent the aspects of your invention which you published, but instead patent some triviality necessary to make practical use of your invention, and claim that it's a new invention on top of yours. Filing a patent and using a patent license designed to combat this kind of behavior (e.g. making permission to use conditional on non-enforcement/non-retaliation against parties using your invention) possibly offers a stronger defense. – R.. Jun 18 '18 at 20:21
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    For just one example of when this didn't seem to work, a Canadian company called Certicom was able to patent all sorts of elliptic curve cryptography that, to a mathematician, seemed to claim credit for long established prior art in the cryptography literature. They were challenged, and they won every time in the courts. I'm not a lawyer so I never understood how they prevailed, but I'd be skeptical about pitting scientists and mathematicians against lawyers in a legal dispute. I suspect it would've been better to have a well-written patent than a well-written academic paper. – James K Polk Jun 18 '18 at 23:34
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    @rhymes_with_dorange: The difference is that your patent license can leave you with the option to sue users of your patent who patent "extensions" and don't license them back freely to you and everybody else. – R.. Jun 19 '18 at 17:07
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Publish Your Invention

In theory, any reasonably-findable publication should work just as well as actually getting a patent in terms of establishing prior art to prevent the issuance of another patent on the invention.

Practice, however, is not always ideal. Judging from my experience patenting inventions, the patent examiners aren't always the best at finding relevant prior art and, even when they do, they don't always understand everything they're reading, regardless of how the prior art may have been published. At least in my experience, they also do tend to search the patent database more than other public publications.

If another patent does go into force on your invention, though, the only way for its owner to do anything with it is to sue someone. At this point, showing them that you have published prior art is likely to end any such enforcement attempt.

Check the USPTO Patent Application Database Routinely

Once you've published your invention (whether as a patent or not,) if you really want to be sure no other patent issues for your invention, the best way to do that is probably to periodically perform patent application searches yourself. USPTO's website allows you to search patent applications both by various metadata fields and by full-text.

Additionally, you can register for notifications when patent applications in areas of interest to you are filed. This may also help in identifying any attempts by someone else to patent your invention.

If your searches were to turn up a patent application that was attempting to patent your invention, you can submit a Third-Party Preissuance Submission to USPTO with the application number and your publications that demonstrate prior art. Depending on the number of documents you're submitting, though, this may incur a fee.

  • Most people don't have the kind of time to do that. Also they get money for approving patents, not for rejecting so it is in their interest to deny / not believe that the prior art actually is related to the patent. – mathreadler Jun 20 '18 at 19:51
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    @mathreadler They get application fees regardless of whether the patent is approved or not. And even more app fees when you have to file a continuation due to multiple rejections based on completely unrelated 'prior art' and/or because the examiner doesn't actually understand the words they're reading. (Yeah, I might be a bit bitter about all of the time I've wasted trying to get patents approved.) That said, you're right that most people (myself included) wouldn't be willing to invest the time to do this, but it's about the only way to do what the OP asked for. – reirab Jun 20 '18 at 20:22
  • So they get application fees regardless. Ok well that's a bit better than I was afraid of. But often I guess it is a company backed with money reserved for patent applications vs the inventor supposedly a lone academic who makes little or no money of it or something of the sort who usually would need to spend time earning money on a day job and not searching for patent applications. – mathreadler Jun 20 '18 at 20:48

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