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Identifying Inventions in the Public Domain: A Guide for Inventors and Entrepreneurs

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Identifying Inventions in the Public Domain: A Guide for Inventors and Entrepreneurs

Submitted by Nathalie Montillot
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Time Zone
Europe/Zurich
Expert Name

Donna Perdue is an attorney and consultant specializing in intellectual property (IP) law and policy.

She obtained a PhD degree from Cornell University, held academic positions at Oregon State University and the University of Washington, and was a research scientist with the United States Department of Agriculture. After obtaining a JD degree from the University of Washington, she practiced IP law in boutique and general practice law firms.

In 2011, Dr. Perdue founded Perdue IP Law, APC, as a virtual law firm for IP law and IP-related consulting services. Her practice focuses on technologies in the life sciences and bio economy sector, and on issues related to genetic resources.

Dr. Perdue was selected by the World Intellectual Property Organization (WIPO) to be the lead expert responsible for developing the WIPO publication Identifying Inventions in the Public Domain: A Guide for Inventors and Entrepreneurs.

Dr. Perdue lives in San Diego, California.

To access a webinar presentation by Dr. Perdue on the Guide, please go to: https://www.wipo.int/meetings/en/details.jsp?meeting_id=57889. The presentation slides of the webinar can be downloaded below.

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Reply by Nathalie Montillot

Welcome to this Ask the Expert session!

The recording of the webinar on the Guide on Identifying Inventions in the Public Domain which took place on July 16, 2020 with Dr. Donna Perdue, and which provides a good introduction to and overview of the Guide is available at: https://www.wipo.int/meetings/en/doc_details.jsp?doc_id=507391

The Guide can be downloaded free of charge here: https://www.wipo.int/publications/en/details.jsp?id=4501

We look forward to receiving your questions!

TISC Team

Reply by Nathalie Montillot

Please note that the Questions and Answers from the Webinar on the Guide on Identifying Inventions in the Public Domain have been added to this Ask the Expert session (see above under "Documents": document entitled "wipo_webinar_tisc_2020_9_q+a_0.pdf")

Reply by Jackeline Marí…

There are statistics on the commercialization and manufacture of technologies developed for COVID-19 under public domain licenses?

Technologies have been developed to address the pandemic by COVID-19 that have been registered by public domain licenses. 

Are these technologies attractive to the industrial sector that can manufacture and market them with little or no profit margin? How many of these technologies have received offers from industries for their manufacture and commercialization?

 

Thank you for your answers

Reply by Nathalie Montillot

Thank you for the question on technologies in the public domain. In reference to the use of inventions in the public domain, I would like to inform you that the companion publication to the WIPO Guide on Identifying Inventions in the Public Domain, the WIPO Guide on Using Inventions in the Public Domain, has been developed specifically with the aim to help researchers, inventors and entrepreneurs understand how they can access and use technology and business information and knowledge in the public domain, for the development of new products and services. The full publication is available for download free-of-charge at this link: https://www.wipo.int/publications/en/details.jsp?id=4502

A webinar was also held on the subject. The recording and presentation slides are available at the following link: https://www.wipo.int/meetings/en/details.jsp?meeting_id=57888

If you have any further questions on this subject, please do not hesitate to contact the TISC Team at: tisc@wipo.int 

Reply by Donna PERDUE

When an invention (technology) is in the public domain in a country, there are no enforceable patents that cover any feature of the invention in that country, and no licenses are required to use the public domain invention.  An invention may be in the public domain in a country at a specified time, for either of two reasons: no patents ever covered any feature of the invention and it has always been in the public domain in that country; or all patents that ever covered any feature of the invention are no longer legally enforceable because they have expired or been abandoned, withdrawn, revoked, or invalidated, such that the invention has entered into the public domain in that country. This means that anyone can freely make, use, sell, offer to sell, or import the public domain invention in that country, at any time when the invention is the public domain in that country.  Public domain inventions can be a source of economic and social value because anyone who wants to realize value from the invention - whether as an Individual, an organization, a business, or a governmental entity – can practice the invention freely according to their own plans, without having to get permission from a patent owner or accept conditions imposed by a patent owner.  

It is important to recognize that public domain is not the only way an invention may be free to use.  Under certain circumstances, a patented invention may be freely available to use in a country even when one or more enforceable patents cover the invention in a country at a time when someone wants to use the invention.  In one set of circumstances, “patent exhaustion” or “first sale doctrine” may apply, such that the first authorized purchase of a patented invention in a country “exhausts” the patent owner’s right to control who can use the invention in that country, and the purchaser can then use the invention as they wish, e.g., they could buy a patented device from the patent owner and then use that device as part of another machine.  (Patent exhaustion is codified as law in some countries, and applied as legal doctrine in other countries.)  In another set of circumstances, the owner of an enforceable patent may dedicate a patent to the public at a time when the patent is enforceable, allowing anyone to freely practice the invention without requiring permission or a license.  These circumstances are defined by country-specific laws and legal doctrines that can vary widely.  Finally, each case is specific to a single patent and does not change the enforceability of other patents that may cover other features of an invention.