A high number of patent applications are given a non-final rejection from the USPTO according to Yale. Often, the reason that the patent office will cite for rejecting an application is the presence of prior art. This makes the term ‘prior art’ an important concept for inventors to understand.
What is Prior Art?
You may have heard the term ‘prior art’ before in the context of patents. It’s the legal term for ‘thing that is exactly like my thing that was in the public before I made my thing.’ ‘Prior art’ is catchier.
The term covers anything that was sold in public, used publicly, described in a magazine or similar publication, or already has a patent on file with the patent office. It also includes designs that have been published anywhere in the world or things that have been used anywhere in the world.
According to 35 US Code, the prior art counts against you if it is in the public domain before the effective filing date of your invention. It will also count against you if someone else applied for a patent for a thing identical to your invention and was published under section 122(b.) (35 US Code section 122 ensures the confidentiality of the patent process, and subsection (b) lets the director disclose information about the patent process at the director’s discretion.)
Exceptions
The US code lets you apply for a patent if the design was disclosed by you or a joint inventor less than a year before the effective filing date of your patent. The design can be publicly disclosed by someone else who got the information directly or indirectly from you or your inventing partner, too.
If your invention came out of a research team, one or more parties can apply for a patent if everyone on the joint research agreement is named on the patent and the joint research agreement was still in effect on or before the effective filing date of your patent.
Avoiding The Prior Art Stigma
Many things are already patented, so it is easy to invent something that is accidentally similar to an item already on the market or that has been patented. You will want to search for prior art before you start the application process just to be certain that you can get one. To help you figure that out, the USPTO lets you search for prior art by using their Public Patent Application Information Retrieval system on their website. You can also find patents from around the world on the Google patent search feature by going to google.patents.com and putting your idea in the search bar. Google Scholar will take you through literature for ideas that have been published but not necessarily patented if you check the box under the search bar for non-patent literature.
If your invention is already on the market, you may be able to change it enough to still get your patent. It’s possible to be in a grey area as well, where your invention is similar enough to something else that you think the patent office might get confused. In that case, it is probably a good idea to talk to a patent lawyer about your options.
As you can see, prior art is a tricky thing to navigate. It helps to have lawyers who focus on patents on your side when you are trying to determine what to do with your invention and you suspect that there may be some similar inventions. This is where our law firm can help you. For more information on how Larson & Larson can help you with the patent process, contact us.