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Authored by Babak Akhlaghi on April 10, 2026. I recently spoke with a founder who had obtained a patent but wasn’t happy with it.
Not because the patent was invalid. Not because the attorney made mistakes. But because the patent included a feature that made it easy for competitors to design around.
The founder wanted to fix the problem.
This happens more often than you think. Founders rush to file patent applications under pressure from investors or advisors, chasing the validation of “patent pending” status without asking the harder question: does this filing give us strategic value?
If you can’t articulate why you filed what you filed, you’ve just bought an expensive piece of paper.
I work with tech founders in AI, robotics, and biotech. I see this pattern repeatedly. The reflex is always the same: protect your IP means file patents. But in fast-moving sectors where technology evolves faster than patent offices can process applications, that reflex can lock you into the wrong strategy.
Sometimes the smarter move is to publish your innovation on purpose.
The Patent Paradox Nobody Talks About
Here’s what most founders don’t realize: filing a patent without strategy reveals too much, constrains too early, and increases enforcement risk.
Patents are public documents. They expose your thinking. They define your claims in ways that competitors can study and route around. In AI-driven sectors where foundational techniques iterate rapidly, this public disclosure can create challenges for fast-moving startups.
The costs are real. Patent expenses can be substantial, particularly for AI and software patents with their technical complexity.
The problem usually starts at the beginning. An inventor walks into an attorney’s office, describes an idea, and the attorney drafts an application that covers that idea correctly. I’ve heard inventors complain they don’t even understand the application because it appears so far removed from what they described, buried in technical terms. But they approve the draft anyway. The application gets filed.
Mistakes don’t appear until years down the road.
You get into investor rooms. You start licensing negotiations. You begin commercializing the invention. That’s when you realize the claims are too narrow or subject to easy design-arounds. By then it’s too late.
This can be avoided if you start with a focused strategy session. If you ask a few key questions up front: What are your business objectives? How do you plan to monetize the invention? What are the key aspects that support that monetization? What are the possible design-arounds?
Simple questions like these help you build an IP roadmap that moves ahead strategically instead of reactively.
What Defensive Publishing Actually Does
Defensive publishing is a different approach entirely.
Instead of claiming exclusive rights to an invention, you disclose it publicly. This disclosure serves as prior art against competitors, preventing them from patenting that territory. You don’t own the space. But neither does anyone else.
This is particularly helpful for minor improvements to your core technology where you don’t want to be encumbered by an issued patent from a competitor. In such scenarios, defensive publishing becomes an inexpensive way to protect your territory.
Think about it this way: if you want exclusionary rights, you get a patent. If you don’t want or need exclusionary rights and only want to create prior art or blockage, defensive publication is the way to go.
Let’s say you’ve already protected your core AI architecture. You come up with improvements that are important but don’t really give you competitive advantage. You don’t want a competitor to claim those improvements, however. What do you do?
You have two options: patent the improvements yourself or defensively publish them through well-known publications. The second option prevents competitors from creating blocking patents against your improved technology ahead of your product roadmap.
To this end, draft patent applications once published serve the same purpose as defensive publishing. But they’re much more expensive since you’re paying thousands of dollars to an attorney to draft them.
The Mechanics: How to Actually Do This
For a defensive publication to work, it has to be an enabling disclosure.
Think of it as a patent application where you have to describe how to make and use the invention. It’s not enough to broadly describe the improvement without sufficient details enabling someone to actually make it. That’s one requirement you have to satisfy.
The other requirement: you have to publish it so it’s easily discoverable by examiners when they do their prior art searches.
Where do you publish? Think about well-known tech publication journals, well-known defensive publication platforms like ip.com, or even filing an expensive patent application which will be published in 18 months.
The USPTO explicitly recognizes that “an electronic publication, including an online database or Internet publication, is considered to be a ‘printed publication'” provided the publication was accessible to persons concerned with the art.
Publishing to IP.com’s Prior Art Database can be completed quickly and at a fraction of the cost of patent applications. IP.com disclosures are indexed in a database used by patent examiners at the USPTO, European Patent Office, CNIPA (China), and other international authorities.
Compare that to patents: they’re very expensive, they take 18 months to publish from filing, and not all improvements justify the expense of patent filings.
Why Startups Aren’t Using This Strategy
IBM, one of the world’s leaders in extracting value from its patent estate, deliberately publishes a significant portion of its invention disclosures as defensive publications rather than pursuing patents.
IBM was granted a U.S. patent for the scanning tunneling microscope in 1982, a pioneering invention that established IBM as a technological leader in atomic‑scale imaging. As with many foundational technologies, the maturation of the field was accompanied by extensive patenting activity on incremental improvements by multiple parties. This pattern, often described in other technology domains as patent “picket‑fencing,” illustrates why, in breakthrough technologies, strategic approaches such as defensive publication of incremental innovations can help reduce the risk of third‑party blocking patents forming around a core invention.
So why aren’t startups copying what large corporations already know works?
I believe it’s simply awareness and outside pressure, particularly from investors early on, to patent everything. “Publish and perish” is a slogan founders often hear. And although it’s true, it doesn’t mean you have to patent everything before publication otherwise you perish.
Sometimes you want to intentionally “perish.”
A well-rounded IP strategy is not just defined by the size of your patent portfolio. It’s defined by your thinking about how to build your IP roadmap through patents, trade secrets, and defensive publications. All of these can be used as tools to give you strategic advantage.
The Patent Troll Defense
Defensive publications act as prior art against offensive filers. In short, they close or minimize the whitespaces in your product roadmap.
Non-practicing entities are less likely to obtain patents in areas where robust defensive publications exist. They can’t assert patents against you if those patents never get granted in the first place.
Patent portfolios work the same way with one additional benefit: they not only act as prior art against future filers by virtue of their publications, but they also give you exclusivity to the idea.
But there are three issues with using patents or patent publications as a roadblock to others:
- They’re very expensive
- They take a long time to publish (18 months from filing)
- Not all improvements justify the expense of patent filings
Defensive publications can go live much earlier. IP.com reports that defensive publishing can be published relatively quickly compared to early patent publication which can take 14 weeks to process.
This is especially relevant in AI and robotics, where technology companies have rapidly accumulated extensive patent portfolios, contributing to dense “patent thickets” that can limit entry and competition across entire market segments
The Decision Framework You Need
Strategy should always come first.
I’ve seen founders rush to file patent applications without strategy just to say they have a patent pending. But they can’t answer basic questions: What does that patent cover? Does it protect the core ideas that investors care about or competitors care about? Is it easy to design around?
These are questions that benefit from having a seasoned patent practitioner in your corner.
Here are the top three questions I ask founders:
1. What is your business objective in obtaining patents? (e.g., offensive or defensive, protecting core technologies)
2. What are the inventive features, and which ones provide strategic value to the company? (e.g., the features competitors would want to copy)
3. Has there been any past disclosure that would prevent patenting?
If the founder has done something that prevents patent filing, that’s immediately a great signal for defensive publication. Similarly, if the invention is easy to design around, another good signal for defensive publication. If the prior art is dense and getting a patent is going to be challenging or there are significant 101 concerns, then another good signal for defensive publishing.
Patents are good for protecting your core technology and foreseeable improvements in your product roadmap. But product roadmaps are not static. They’re constantly evolving, and it’s difficult if not impossible to foresee all future implementations.
It’s also not practical for startups to cover all future improvements as the product evolves. Budget constraints are an issue. Timing and resources needed to develop the patents are another issue. If you’ve worked with startups, you know their inventors and engineers are pulled in so many different directions and are always pressed for time.
The idea of getting an hour of time to sit in an invention disclosure meeting for every improvement may not be feasible or practical. And sometimes even if the budget is not an issue, startups need to move ahead with speed and can’t spend significant time considering every improvement across their product portfolio to patent.
And sometimes the technology is developing so fast that protecting every improvement may not be feasible.
These are the scenarios where you want to think about defensive publication.
You want to be able to publish quickly and cheaply to prevent others, particularly companies that obtain patents for offensive purposes like non-practicing entities or licensing entities, from creating patent roadblocks in your product roadmaps.
Just to be clear: I’m not saying protect your core technology with patents and then forget about patent strategy and just publish everything from then on. I’m saying move ahead strategically. Make sure your IP roadmap is aligned with your product roadmap.
This requires quarterly reviews of your product roadmap to consider the improvements. Consider if they’ve been covered with existing patents and if not, choose selectively but intelligently between patents and defensive publication.
The Counterargument You Need to Understand
The counterargument is straightforward: once you disclose, you’ve dedicated the idea to the public and you can’t take it back. You can’t get exclusionary rights to the invention you publicized, with certain time limit exceptions.
If a few years down the road you determine that you wish you had a patent on that improvement, it’s too late.
This is why strategy is so important and these decisions should be made carefully with foresight and budget in mind. If needed, create memos on why you’re making the decision so years down the road when you look back you can quickly understand the rationale and minimize second-guessing.
The point is you want to patent your core technology. But improvements that don’t provide key commercial value or are incremental or weak in terms of patentability or easy to design around are good candidates for defensive publications.
The Bigger Picture: Solving Patent Thickets
Every invention builds on previous inventions. Newton said every scientist stands on the shoulders of the scientists that came before them. By the same token, every patent stands on the shoulders of the patents that came before that patent.
The issue is that when you have too many patents in a given field, it becomes dense and hard to move through. Imagine trying to do a freedom-to-operate investigation in an area with thousands of patents owned by many different entities.
That makes doing the freedom-to-operate investigation impossible to achieve and therefore may slow the progress of technology, something that’s contrary to the main objective of the patent system, which is the progress of science and technology.
Defensive publication offers a way out. By strategically publishing improvements instead of patenting everything, startups and bigger companies can reduce patent density in critical areas. They create breathing room, not just for themselves, but for the entire ecosystem.
This isn’t just about giving founders another budget-friendly tool. It’s about changing how innovation happens at a systemic level.
The competitive advantage in the next decade won’t belong to the company with the thickest patent portfolio. It will belong to those who understand that intellectual property is about signaling power, blocking control, and deliberately architecting the innovation landscape.
Patents still matter. But they aren’t the only lever, and in some markets, they aren’t even the strongest one.
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The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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