Patenting for Inventors Ep. 170: How to Stop Competitors From Patenting Your Idea Without Filing a Patent — Defensive Publications

Most inventors think about patents in terms of what they can protect. But sometimes the smarter move is making sure no one else can lock down a piece of the puzzle either.

In Episode 170, Adam Diament walks through defensive publications — the often-overlooked IP tool that lets you create prior art, block competitors from patenting your ideas, and stretch a tight IP budget further. He covers when defensive publication is the right call, when it absolutely isn't, and why this strategy is essentially IP judo: using disclosure as strength instead of secrecy.

If you're a startup, a solo inventor, or part of an R&D team generating more ideas than you can patent, this episode is for you.

Patenting for Inventors Ep. 170:

Podcast Transcript:

Hello, and welcome to the Patenting for Inventors podcast. I’m your host, Adam Diament, a registered patent attorney and partner at the law firm of Nolan Heimann in Los Angeles, California. How to Stop Competitors From Patenting Your Idea Without Filing a Patent – Defensive publications. 

So look, most inventors and companies think about patents in terms of what they can protect. Like, “How do I lock down this invention so no one else can make it or use it?” And sure, that’s a big part of the patent game. But sometimes the goal isn’t to protect an invention. Sometimes, the goal is to prevent anyone else from locking it down either. And that’s where defensive publications come in. 

Now, you might be thinking, “Wait—why would I not want a patent?” Well, patents are great, but they’re not free. They cost money to file, to prosecute, to maintain… and they can take years to get. Plus, not every invention needs to be protected with a full-blown patent. Sometimes, you come up with something clever, but it’s not core to your business model. Or it’s going to be obsolete in six months. Or it’s just not worth the time and expense of going through the whole patent process. 

So what do you do in those cases? You publish it. You throw it out into the public domain. Not like, yelling it on the street corner, but by officially publishing it in a way that counts as prior art. Because once it’s public, it’s game over for anyone else trying to patent it. 

Here’s the thing about the patent system: for someone to get a patent, their invention has to be novel. That means no one else disclosed it before. If you publish something—whether it’s a product feature, a process, a workaround—and someone later tries to patent that same thing, the examiner can reject it by saying, “Sorry, that’s old news. Here’s a prior publication that already describes it.” Boom. That publication you made just saved your company from potentially having to license something you already invented. 

Now, not all disclosures are created equal. If you post a blurry photo on your Instagram, that’s not exactly bulletproof prior art. You want something formal. Something searchable. Something time-stamped and indexed. That’s where defensive publication services come in. There are platforms that specialize in this—like IP.com, for example. They’ll publish your disclosure in a way that’s accessible to patent examiners and meets the criteria for prior art under U.S. and international patent law. 

You can also publish through your own company blog or technical journal, as long as it’s public and time-stamped. The USPTO even considers some conference presentations as prior art. The trick is making sure that what you’re publishing is clear and detailed enough that someone in the field could understand it and use it. Just saying “we had this idea once” isn’t going to cut it. You’ve got to describe it like you’re writing a mini patent—just without the actual legal formatting and claims. 

And yes, defensive publications can have real strategy behind them. Big tech companies do this all the time. They generate tons of internal innovation, and there’s no way they can patent everything. So they’ll have teams that filter inventions into three buckets: patent it, publish it, or drop it. That middle bucket—the publish it group—is full of stuff that’s good enough to block competitors but not worth investing in full protection. 

And honestly, that blocking can be huge. If you’re in a competitive space, sometimes your biggest threat isn’t someone stealing your idea—it’s someone patenting a version of your idea and then coming after you. Defensive publishing is like laying down legal landmines. It’s not aggressive, but it’s protective. It’s saying, “Go ahead and innovate—but you’re not going to own this piece of the puzzle.” 

Now, let’s say you’ve got a product with five cool features, but only one of them is truly core. You could file a patent application on that core feature, and defensively publish the other four. That way, you’ve protected what matters most, and you’ve also prevented others from fencing off the less important stuff. That’s resourceful IP strategy. Especially if you’re a startup with a tight budget. 

You might be wondering—what’s the downside? Why not just publish everything? Well, the obvious catch is that once you publish something, it’s out there forever. You can’t change your mind and go back and file a patent application later. At least not in the U.S., where public disclosures start your one-year grace period for filing. And in most of the world? No grace period at all. Public means public, and you just kissed your foreign rights goodbye. 

So if you’re going to publish something as prior art, you better be sure that you’re not going to want a patent on it later.  

And just to be clear, when I say publish, I don’t mean it has to be in some fancy technical journal or academic conference. It could be a white paper. A blog post. A technical manual. Even an online forum, as long as it’s accessible to the public and clearly dated. But again, I recommend using platforms designed for this kind of thing because they take care of the legal formalities for you. Think of it like hiring a professional notetaker instead of scribbling things on a napkin and hoping it holds up in court. 

Now here’s something else that’s kind of fun—defensive publications can also help you during patent examination. Let’s say you’ve filed a patent application, and an examiner tries to reject your claims based on some prior art that’s kind of close but not exactly the same. If you were the one who published that prior art a year earlier, it might actually help limit the scope of other people’s claims while allowing your claims to survive. That’s like playing chess with yourself, but still somehow winning. 

Also, if you’re part of a larger company or R&D team, this strategy can scale. A lot of times, engineering teams crank out ideas left and right, but not everything gets prioritized. So instead of letting those ideas collect dust in someone’s notebook or buried in a Slack thread, you funnel them through a lightweight publication process. You’re essentially sweeping up all the innovation crumbs and baking them into a cookie that nobody else can claim. 

Now, I should say—defensive publication isn’t always the right move. If your competitors aren’t even in the same space, or if they’re not very IP aggressive, you might not need to be so defensive. But in highly litigious industries—think semiconductors, telecom, pharmaceuticals—this stuff matters. You’re playing a long game, and every published detail could be a future shield. 

One thing to watch out for, though: trade secrets. Once you publish something, it’s no longer a secret. So if you’re sitting on something that gives you a competitive edge because no one else knows how it works, maybe don’t go blasting that into the public record. Defensive publication is kind of a one-way door. You can’t walk it back and say, “Oh wait, I want to protect that as a trade secret now.” Doesn’t work that way. 

That’s why a smart IP strategy looks at each invention or idea and goes, “Okay, what’s the best way to protect this?” Patent it? Keep it secret? Publish it to block others? Or just let it go? There’s no one-size-fits-all answer. It’s a balancing act—cost, value, timing, risk tolerance. But the key is knowing that defensive publication is a tool, and it’s one that not enough inventors are using. 

You’d be surprised how many small businesses and startups just assume they either have to patent everything or do nothing at all. But middle ground exists, and it can be powerful. If you’re bootstrapping your business and can’t afford a big patent portfolio, this might be your best shot at building some IP protection that’s still meaningful, just… from the back door. 

Oh, and one last bonus? Publishing things defensively can actually look good. It shows that your team is innovating. That you’re ahead of the curve. I mean, maybe no investor is going to say, “Wow, I’m writing you a check because of your amazing prior art disclosures!” But if you’ve got a stack of technical publications, it adds credibility. It shows thought leadership. It shows you’re contributing to the field, not just guarding your turf. 

Let’s say you’re a startup in the AI space. You’ve got this clever method for optimizing neural networks that’s not core to your product, but it’s still cool. Publishing it can not only block others from patenting it but also show the world—and maybe future acquirers—that your team’s not just building, they’re innovating. 

One thing you should do, by the way, is keep track of everything you publish. Have a spreadsheet. Note the date, the title, the URL or database ID. Because if a patent examiner or legal team ever needs to use your publication as prior art, you want to be able to find it fast. There’s nothing worse than realizing you had the perfect disclosure to block a competitor’s patent, but you can’t find the darn thing. 

Also, make sure you’re coordinating with your patent attorney. Like me. Because the timing of everything matters. If we’re working on a patent application and you go rogue and publish something related, that can backfire. There’s strategy involved. So even though defensive publication feels like a casual move—like, “Hey, let’s just make this public”—it should still be a coordinated part of your IP plan. 

If you’re not sure whether to patent something or publish it, talk to someone who understands the big picture. And no, your cousin who once watched an episode of Shark Tank doesn’t count. This is about understanding how to leverage intellectual property tools—not just checking boxes. 

So to wrap it up, defensive publication is like IP judo. You’re using disclosure as your strength instead of secrecy. You’re shaping the battlefield in subtle ways. You’re saying, “I don’t need to own everything—I just need to keep you from owning it either.” And sometimes, that’s the smartest move on the board. 

That’s it for today’s episode. and if you need help filing a patent application, or other intellectual property, give me a call at 424-281-0162. Until next time, I’m Adam Diament, and keep on inventing!