Preprints and social media: balancing early publication with commercial IP protection

Universities are well aware of the strategic importance of commercialising innovation and a recent report shows that four UK universities are in the top ten in Europe for numbers of startups based on university patent applications¹.

It is also well appreciated that academic researchers are under significant pressure to disseminate their findings with both their peers and the general public. However, when their research has commercial potential, it may require filing a patent application prior to publication. If the invention is disclosed prior to filing a patent application, then this can be harmful or even fatal to protecting the invention and commercialising the research. This is becoming even more important with the increased use of online preprint servers and social media where publication takes place shortly (or immediately!) after upload.

Whether an invention protected in a patent or patent application is considered new and inventive depends on a concept known as the state of the art, also known as prior art. According to the European Patent Office, the state of the art is everything made available to the public by means of a written or oral description, by use, or in any other way, before the filing date of the patent application. This means any public dissemination of work, whether through traditional means such as peer reviewed journal publication or instant publication through preprint servers or social media.

Historically, the first public dissemination of research, and therefore of a potential invention, was usually through publication of the work in an academic journal. Publication in an academic journal requires the manuscript to be peer reviewed which is often a lengthy process of review and revision taking several months and sometimes requiring multiple journal submissions, reviews, revisions, and additional experiments or analysis. Meanwhile, the scientific results contained in the manuscript are not publicly available. Submission to an academic journal for peer review is usually confidential and does not impact the patentability of the invention, provided the patent application is filed before publication.

However, we have noticed that academic researchers are increasingly using preprint servers or social media to publish their early findings in advance of peer reviewed journal publication. Preprint servers are online repositories which the researcher can post an early version of a paper online without formal peer review. Unlike peer reviewed journal publications, publication using preprint servers is shortly after upload (within 72 hours in the case of BioRxiv), or immediately in the case of social media. Once published, these represent public disclosures that are part of the state of the art. Particularly in the case of preprint uploads (as these are often highly detailed, disclosing the invention and the methodology behind it), these are often highly relevant (and likely fatal) to the patentability of the invention. It is therefore imperative to file the patent application before upload.

Preprint servers

Preprint servers such as BioRxiv, MedRxiv or ArXiv are often used by academics. This can have certain advantages, e.g. it can help researchers to establish first authorship of the work, demonstration of progress to funders and peers, and to allow for open access and feedback from all readers. For some journals, such as eLife, preprinting is required whilst other journals such BMJ and Springer Nature, preprinting is actively encouraged. Other journals may however not accept articles previously posted as a preprint.

As mentioned above, any uploads are available to the public very shortly after submission. Also, once published on a preprint server, an article cannot generally be withdrawn.

Social media

Social media platforms such as Twitter/X, LinkedIn, Bluesky and other social network sites are a quick and convenient way to convey exciting updates with followers and peers. Senior academics are even following in the footsteps of their students and taking to TikTok to share videos to shine a spotlight on their research and make it more accessible. These include summaries of key academic findings forming the basis of a later publication (in written or video format) or pictures/video showing or explaining the research. Content is usually short in length and may be less detailed than uploads on preprint servers, but if the invention is nevertheless disclosed, such publication is likely to be highly problematic for the patentability of the invention. Of course, publication and therefore disclosure is immediate.

Conclusion

Early communication between academics and their University Technology Transfer colleagues is key to allow for a robust review of a potential invention and the commercial value in filing a patent application. The changes in publications practices with academics increasingly making use of preprint servers and/or social media to publish their research means that timing is of the essence to avoid an inadvertent disclosure which could significantly impact the University’s ability to commercialise the research.

¹https://www.epo.org/en/news-events/press-centre/press-release/2024/1252722

Barbara Fleck & Oliver Herd, Appleyard Lees