My last blog dealt with the impact of blogs and other (non peer-reviewed) Internet publications on the scientific research process. Let's continue on that topic with a focus on how such publications affect patent rights.

The US patent law holds that an invention cannot be patented if (a) the invention happened after a similar idea (or an idea from which the invention is "obvious" to an expert practitioner in the field) had been described in a printed publication anywhere in the world or (b) the patent filing date is more than a year from such publication even if the invention happened earlier (see www.uspto.gov/web/offices/pac/doc/general/index.html).

This is how researchers used to operate. You do some research and have some "results"—a well-articulated idea or point of view, an invention, a proof, empirical results to support or refute a hypothesis—and then you write a paper. Make sure that your bibliography does not omit even remotely relevant work by the heavyweights in your field. If you are submitting to a journal, expect to wait for at least three months before you get your first round of reviews. Modify the paper to satisfy the reviewers. Sometimes, a second round can follow. Even after the paper is accepted, expect three to six months lag before it's actually published.

The peer review and publishing process had two implications with respect to patent rights: (a) you wouldn't publish an idea until enough details are worked out to constitute an LPU (least publishable unit), and (b) the inherent slowness of the process gave you a longer time window for filing the patent application.

Blogs as a means of communicating new ideas can be a double-edged sword with respect to patent rights. Here’s why:

Ideas develop over a time. What starts as a small idea can eventually lead you to an invention several months or years later. Let's say, you have an idea and you blog it. In the next few weeks and months, you have a set of related ideas, and you blog them too. Then, several months later, you realize that you can build a new kind of mousetrap based on these ideas. If more than a year had passed from your initial set of disclosures (from which your mousetrap is an obvious extension), you have lost your right to patent your mousetrap.

But here is the other edge of the sword. By continually publishing your ideas, you are also preventing others from patenting the same or similar ideas. In the old days, others can patent your ideas until your well thought-out, peer reviewed paper is officially printed (even if they had the idea much later than you did). But now—at least in principle—you prevent anyone from (a) patenting any invention that occurred after your idea was blogged or (b) patenting any invention (even if it occurred before your blog) a year after you blogged the idea.

Perhaps, blogs will have the effect of bringing more new knowledge quicker into the public domain and prevent many less-than credible patents (there's a patent busting effort to squash spurious and frivolous patents—see www.eff.org/patent/).

A triple-edged sword doesn't quite make sense (hey, is that patentable?), but my patent story does have a small third edge: If you are not careful, blogging can actually hurt your claim to intellectual property rights.

If Edison had been a blogger, he probably would not have received his patent for the light bulb. His patent application for the light bulb was rejected because the US patent office determined that Edison's invention was based on the prior art of one William Sawyer. Edison had incriminating evidence against himself in his diary showing that he was simply extending Sawyer's design (as a blogger he probably would have linked to Sawyer's blog). However, Edison and his attorneys removed these pages from the diary and convinced a judge that Edison's carbon filament was unrelated to Sawyer's patent and is therefore a non-obvious invention. See en.wikipedia.org/wiki/Electric_bulb.

So, if you think any of your ideas may give you patent rights in the future, be careful what you say in your blogs—blogs can work for you by denying property rights to others, they can work against you by exposing your ideas prematurely or narrowing your time window to apply for a patent, and they can establish a trail of evidence that a litigant can use against you to show a judge that your invention is an obvious extension of prior art.

I have an idea that could revolutionize an important area of information technology—but I cannot tell you because I might compromise Accenture's patent rights.