copyright intellectual-property patents public-domain academia
Are designs explained in academic publications considered to be in public domain if there isn&#39;t yet a patent application about it?
<p>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,</p>

<h2>Designs in publications are prior art</h2>
<p>If a party publishes a design in any way <em>to the public</em>, 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.<sup>1</sup> However, a publication of the underlying material <strong>doesn't invalidate a previous patent.</strong> In fact, requesting a patent requires disclosure and publication.</p>
<p>Academic publications do count as a publication of the mechanism and are grounds to void a patent filed after the publication date.</p>
<hr />
<p>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.</p>

<blockquote>
<p>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?)</p>
</blockquote>
<p>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 &quot;prior art&quot; for patent law purposes once it is published). Closed access v. open access is irrelevant for this purposes.</p>
<p>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.</p>
<p>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.</p>
<blockquote>
<p>If a design isn't patented, do companies have the right to use these
designs presented in journals?</p>
</blockquote>
<p>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.</p>
<p>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.</p>
<p>There could conceivably be other reason that the design couldn't be used (e.g. it violates a safety or health regulation).</p>
