Defensive publishing as an intellectual property strategy in the Aotearoa New Zealand life science industry

Abstract

Defensive publication is the practice of publishing an invention into the public domain to prevent subsequent patenting. By voiding any claim to novelty, the publication acts as a defence against an exclusivity right being granted. This intellectual property management strategy has been examined in the literature regarding frameworks of open knowledge, cumulative innovation and in patent races. However, there is little empirical research of the practice. The present qualitative research study examines attitudes towards defensive publication in the life science industry in Aotearoa New Zealand. Interviews were conducted with leading intellectual property practitioners in the sector, to understand the frequency with which the strategy is used, under what conditions, and why it may be used in place of, or in combination with other intellectual property management approaches. Data was analysed using a reflexive thematic analysis approach, producing results in the form of themes. Findings included the rarity of the strategy in the sector, contexts in which it may be useful, variations in definitions of defensive publishing between participants, the peculiarity and influence of the United States industry and legislation, and tensions between philosophical and commercial attitudes towards knowledge management. This research offers insight into the hidden decision-making of patent attorneys in the life science sector in Aotearoa New Zealand and suggests contexts where defensive publications may complement established patenting practices.