5

In academic journals, sometimes the new approach they describe seems so promising that companies may want to use those designs or designs made/inspired from the principles mentioned in the publication. When an invention is publicly displayed, it loses its novelty and hence cannot be considered as patentable. My question is: is an academic journal publication considered a public display of information or isn't considered so depending on the publication being an open-access one or not?(Is there any difference whether the publication is accessible through a subscription based journal - which limits the audience and hence may limit the public display criteria - or a blog on the internet?) If a design isn't patented, do companies have the right to use these designs presented in journals? Thank you,

Improve this question
1
  • 4
    Bear in mind that open access is a relatively recent invention. As recently as 15 or 20 years ago, practically all academic journals were subscription based. Yet academic publication was still prior art.
    – Nate Eldredge
    Commented Mar 13, 2023 at 20:55

2 Answers 2

Reset to default
13

Designs in publications are prior art

If a party publishes a design in any way to the public, no other party can patent it and the publishing party only has a narrow window to file for a patent if the jurisdiction even allows for that.1 However, a publication of the underlying material doesn't invalidate a previous patent. In fact, requesting a patent requires disclosure and publication.

Academic publications do count as a publication of the mechanism and are grounds to void a patent filed after the publication date.

1 - In the US, there is a general timeframe for that, in other jurisdictions, such a timeframe is only given if the publication was to acquire a patent in a different country.

Improve this answer
9
  • 2
    Please add that this answer applies basically only in the US. There's enough half-correct information out there.
    – DonQuiKong
    Commented Mar 14, 2023 at 5:33
  • 7
    @DonQuiKong How so? The basic idea of prior art exists in this form in the EU and presumably in all other nations with a reasonable patents system as well and publication in a journal, academic or not is a clear example of existing prior art.
    – quarague
    Commented Mar 14, 2023 at 10:50
  • Not limiting prior art to open access-ness may permit rewriting history with false records in never before seen publications, doesn't it? Seems scary for patent owners.
    – b.g.
    Commented Mar 14, 2023 at 17:26
  • @b.g. it is not limited, because otherwise someone might read some obscure magazine and then patent all the things in it, stealing the patents. However, those patents are invalid as prior art, unless the author of the article in them is seeking the patent within a tight timeframe,. Prior art means publication before you file. If you file on January 2nd and someone publishes the same thing on January 4th, then it is not prior art. if the dates are swapped, it is
    – Trish
    Commented Mar 14, 2023 at 19:14
  • @quarague and almost no part of the world other than the US allows even a "narrow window" to file for a patent, unless you count "till end of the day." Which makes this answer incorrect in most of the world. Therefore, it should state so.
    – DonQuiKong
    Commented Mar 14, 2023 at 19:37
8

Is an academic journal publication considered a public display of information or isn't considered so depending on the publication being an open-access one or not? (Is there any difference whether the publication is accessible through a subscription based journal - which limits the audience and hence may limit the public display criteria - or a blog on the internet?)

A publication in a closed access journal is still a public display of information that prevent an idea from being patented (i.e. the closed access journal article is "prior art" for patent law purposes once it is published). Closed access v. open access is irrelevant for this purposes.

Blogs and closed access subscription only journals have the same legal effect at prior art, at least in so far as members of the general public or some other large group of people may subscribe to the journal if they wish.

A newsletter limited to internal use among members of the same collaborative laboratory or workshop (with its own confidentiality protocols) that is seeking the patent might not count as prior art because that is really just a communication among the multiple patent authors, rather than a release of information to anyone else.

If a design isn't patented, do companies have the right to use these designs presented in journals?

I would state less ambitiously that if the design has been published that it wouldn't infringe the patent rights of anyone who does not have a patent of the design prior to its publication.

It could be, for example, that the design would actually infringe upon an existing patent that remains in force and was established before the journal published the design, if it was used. Merely publishing a design for aqn invention that would be infringing if it were actually manufactured is not itself patent infringement.

There could conceivably be other reason that the design couldn't be used (e.g. it violates a safety or health regulation).

Improve this answer
2
  • 1
    In the days of paper journals arriving by mail the publication date was theoretically the day the first subscriber could have received it.
    – George White
    Commented Mar 15, 2023 at 0:57
  • @GeorgeWhite Obviously, there isn't much of a gap these days, although it still isn't, for example, the day that a manuscript is received for publication by the journal (which is often disclosed in modern practice).
    – ohwilleke
    Commented Mar 15, 2023 at 14:47

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .