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[anewattorney]

Can some please explain to me the difference between defensive and offensive patenting?

I would think that defensive patenting entails finding certain pathways in the art, that lead to some result, the result of which you do not want patented, so you patent an intermediate step within that pathway.  I am not sure.

[MrSnuggles]

My understanding is that defensive patents are usually ones that cover something that you plan to practice or are practicing.  They defend your business.  On the other hand, offensive patents are meant to cover something that a competitor may practice or is practicing.  If you get a patent in that case, you can offensively sue for infringement or seek a cross-license or what not.

There's a lot of grey area though, where a patent is both defensive and offensive, depending on timing and the situation.

There are also what's known as defensive publications.  These are usually a technical writing describing a process or apparatus that you've discovered that, rather than pursue a patent over the idea, you want to publish it to create prior art against everyone else so that they can't get a patent on the idea.

[Bill Richards]

My understanding of defensive patents is they are pursued to keep others from getting patents in that area and that you're not particularly interested in suing on them, but don't want another to have exclusive rights granted, much like a defensive publication.

[MrSnuggles]

That may be a more accurate statement Bill.  In my experience, it usually involves patenting things around existing patents on products or services that you are making/selling.  So you build a penumbra of patent protection around your main patents, usually using continuation practice.

Does that sound about right?

[JimIvey]

I think all those suggestions are good ones.  My understanding is that there's no official definition of "defensive" or "offensive" patents -- although a number of anti-patent pundits view all patents as offensive (as in repugnant), but that's not what the OP meant.

I'll offer up one more type of "defensive" patent that I've seen over the years.  Some companies perceive themselves to be at risk from mass assertion of a large patent portfolio from a competitor.  They hope to build a large portfolio of their own for use in cross-licensing negotiations.

I'll give an example from former inhouse counsel whom I know.  A  company was asserting a large portfolio against a target company (for whom my friend worked).  The target company found a patent (individually owned) that read on the asserting company's business (product or process, not sure which).  The target company purchased the patent for 7 figures and, in offering cross licensing, reduced the price by an order of magnitude -- from 9 figures to 8 figures.  Financially, it was an extremely smart move.

Regards.

[SoCalAttny]

Sword or sheild? It depends on which side you are on.