1. What Is Prior Art?
2. Prior Art and Patents
3. Prior Art and Patent Application Rules

The prior art patent application involves ruling out all pertinent prior art instances for a patent to be approved.

What Is Prior Art?

Prior art is any type of evidence showing that your invention is already known. It doesn't have to be commercially available or even exist physically. It's simply enough that someone else previously showed, described, or made something containing a use of technology that's similar to your creation.

Prior art has to be a reference of some sort, such as a printed publication or patent. It can also be some kind of knowledge or event, such as public use or sale, or simply public knowledge. All of this demonstrates that the invention isn't new.

The most obvious form of prior art is an existing product, but prior art can include anything from a prehistoric cave painting to a centuries-old piece of technology. Even a previously described idea that doesn't work can be prior art.

Not understanding the full scope of prior art may lead inventors to make a common mistake. They think that because they can't find a product containing their creation for sale anywhere, their invention has to be novel. The reality is that many inventions never become actual products for sale. However, there's evidence of their existence somewhere. Whatever form that evidence takes is prior art. Although there are no exact numbers, some experts estimate for every invention that makes it to market, 10 inventions never make it that far.

To find out if your invention is indeed novel, you should search products in the past and present. However, you may have to conduct deeper searches.

Prior Art and Patents

A patent can't claim something obvious or something that already exists. Patent examination always looks for prior art that shows the invention isn't obvious or new.

The patent system exists to reward inventors for making their inventions public. This implies the invention should be new because it doesn't make much sense to reward someone for telling the public something that they already know.

If a patent examination shows the invention isn't new, the application will be rejected. In case the patent is granted, it may still be annulled later if a court finds the invention wasn't actually novel.

Prior Art and Patent Application Rules

There are definitive and other rules when it comes to patent applications and prior art.

Definitive rules are as follows:

  • No patent will be obtained if another patent issued someplace in the world already described the invention before the applicant invented it.
  • No patent will be obtained if a printed publication anywhere in the world described the invention before the applicant invented it.
  • No patent will be obtained if the invention was publicly known in the United States (even if it wasn't published or patented) before the applicant invented it.

Additional rules include:

  • No patent will be obtained if another patent issued someplace in the world already described the invention more than a year before a U.S. application was filed.
  • No patent will be obtained if a printed publication anywhere in the world described the invention more than a year before the U.S. application was filed.
  • No patent will be obtained if the invention was in public use or offered for sale in the U.S. more than a year before the application was filed.

More rules are listed below. They're applicable only if no other “knock out rule” applies.

  • A patent can be issued if the invention was known outside of the U.S. but not in the U.S. prior to its invention.
  • A patent can be issued if the invention was sold or used publicly outside of the U.S. but not in the U.S. more than a year before filing the U.S. application.
  • A patent can be issued if the invention rights were licensed or sold anywhere in the world more than a year before filing the U.S. application.

If you create something unique, you want to protect your invention, whether you plan to take it to market or license it. The patent application process can be long and expensive. Conducting preliminary searches for prior art can make your application go more smoothly.

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