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If someone publishes build instructions for an idea on their web site, and never pursues patent protection, does that idea and its implementation:

  • Enter the public domain?
  • If so, when?
  • If not, why?

Thanks.

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'In the public domain' means that a work is free of all intellectual property rights (i.e., they have expired, been forfeited, or are inapplicable.) Prior art needs to be publicly accessible, but it isn't necessarily in the public domain.

Illustrative timeline:

Public disclosure: An inventor discloses an invention and an implementation on their website. Since the invention is now publicly available, it is considered prior art as of this date against other inventors.

One-year after public disclosure: In the US, under AIA § 102(b)(1)(A), an inventor has one year from the time he or she discloses an invention within which to file a patent application. So if the inventor has not filed an application within a year, the disclosure becomes prior art against the inventor as well and the invention is no longer patentable.

Up to 30 months after public disclosure: If the inventor does choose to file, it could be up to 30 months after the time of the public disclosure that the application is published and you know the inventor is pursuing a patent.

Potentially long time after public disclosure: Depending on the type of disclosure, other intellectual property rights may still cover part or all of the disclosure. For example, IP rights on the idea may have been forfeited, but there could still be copyright or some other right associated with the implementation.

Notes:

  • Publicly accessible doesn't necessarily mean free. (e.g. paid journal articles)
  • A public disclosure doesn't necessarily mean that a different inventor doesn't already have a patent application or grant covering the idea.
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Well, if it has been published on a web site, at least nobody (the website author or anybody else) can obtain a patent on the same idea. I am not sure if this is what you mean by "entering the public domain".

  • I've been trying to find an opinion if unpatentable (via publication or whatever) idea implementations leak to the public domain just like patented ideas appear to do after their term expires. Another way to put the question is simply... Is prior art in the public domain? Thus far I have not found an opinion that correlates "prior art" and "public domain." – JSH Feb 5 '15 at 18:52
  • It depends on the current standing. Anything that is publicly disclosed that describes the claims, in part or all, before the priority date of a patent application MAY potentially invalidate the patent being issued or awarded. – Jose Miguel Feb 9 '15 at 16:58
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Patentless:- no patent application or overlapping application was filed, pending, granted; No other IP protection was made, viz copyright, trademark, geographical indications, design patents; information is not from out of contract as illegal disclosure.

Prior Art:- anything published before priority date, may include website, patents, research articles etc.

Based on above definitions:- Patentless publication can be used freely by public.

In case of Prior Art being patent then after its expiry and all other overlapping patents expiry disclosure is open to public use.

  • You might want to caution that the publication does not guarantee freedom to operate in case there is already issued patent. – Eric Shain Dec 10 '18 at 19:27
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It depends on the current standing. Anything that is publicly disclosed that describes the claims, in part or all, before the priority date of a patent application MAY potentially invalidate the patent being issued or awarded.

  • Okay so let me ask it this way... are the ideas described in the claims of an invalidated patent in the public domain? – JSH Feb 10 '15 at 18:25

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