Using Defensive Publications to Block Rivals in 2025

When a company publishes details of their invention in a way that makes it publicly available, it creates "prior art."

This prior art prevents others from obtaining patents on that same invention. In India, publications can be made through various channels including:

• The Indian Patent Office's official journal

• Technical journals and publications

• Company websites or technical disclosure bulletins

• Academic papers or conference proceedings

International Companies are increasingly filing via PCT route in India

Companies are increasingly filing via PCT route in India because it gives them 30/31 months from the priority date to make decisions about which countries they want to pursue patent protection in.

By filing through PCT but deliberately not filing a Request for Examination (RFE) in India, companies are creating an interesting competitive dynamic.

India's patent laws require that an RFE must be filed within 48 months from the date of priority. If no RFE is filed, the application is considered withdrawn. However, the PCT application's technical contents become public after 18 months from the priority date.

The new RFE 31 months deadline applies to patent applications filed on or after March 15, 2024. For applications filed on or before March 14, 2024, the due date will remain 48 months from the earliest patent priority date.

Indian Patent Office - Form 18 (Request for Examination): [Form 18 - IP India] for request of patent examination.

While India represents a huge market opportunity, many companies find that the cost and uncertainty of patent litigation in India outweighs the benefits of patent protection.

Consider this example: Let's say a pharmaceutical company develops a new drug formulation.

They might:

• File a PCT application covering the invention and enter India under national phase in India

• Allow it to publish after 18 months

• Actively pursue patents in markets like US, Europe, and Japan

• Strategically not file an RFE in India

This approach ensures that while they can't stop others from using their invention in India, neither can competitors patent it and try to block them from the market.

A key consideration is that this strategy requires careful timing and consideration of the business objectives of the technology enterprise.

How would you assess whether the cost savings of this approach outweigh the potential loss of exclusivity rights in a growing market like India?

In emerging technologies like artificial intelligence or green energy, how might the choice between defensive publication and active patent protection in India affect your company's ability to participate in standards-setting or industry collaborations? What opportunities or limitations might arise from each approach?

While India represents a huge market opportunity, many companies find that the cost and uncertainty of patent litigation in India outweighs the benefits of patent protection.

While both patent claims and descriptions are essential components of a patent application, descriptions often take precedence during patent examination due to their role in clarifying the invention details better, and facilitating comparisons with prior art cited by the patent examiner.

Bonus Tip for Patenting: Remember, you can't add new information to your patent invention after you file it, so it's better to include too much detail than too little. Think of everything someone might need to know to understand and make your invention work.

Disclaimer: This information is provided for general educational and informational purposes only and does not constitute legal advice or opinion. The content discussed regarding defensive publication strategies, Patent Cooperation Treaty (PCT) filings, and patent examination requests in India represents general observations of potential intellectual property strategies and should not be relied upon as definitive guidance for any specific situation.

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