Prior Art
What is Prior Art?
In the simplest terms: prior art refers to any evidence indicating that your invention is already familiar or known.
In the context of patent law, the concept of prior art extends beyond physical existence or commercial availability. It includes any prior description, demonstration, or use of technology that bears a striking resemblance to the invention in question.
The crucial factor is the similarity between the existing invention and the new one. Therefore, when assessing the novelty and non-obviousness of a new invention, it is essential to conduct a thorough search for prior art.
What Counts As Prior Art?
The misconception that prior art is limited to existing products or issued patents is common.
Prior art encompasses a wide range of information, including:
- Publicly available products
- Commercial use of an invention
- Articles or publications in any format
- Public presentations
- Public knowledge or use of the invention
This means that even a high school textbook published in a limited geographic area can count as prior art if it meets the disclosure criteria.
Additionally, previously filed patent applications, even if not publicly available at the time of filing, can still qualify as prior art if they become public after the effective filing date.
What Doesn’t Count As Prior Art?
Usually, information made public or available after the filing date of an application generally does not qualify as prior art.
Here are four other notable exceptions to the examples:
- Publications that lack enabling detail (means they do not sufficiently disclose the invention)
- Abandoned, secret patent applications (can not be qualified as prior art under certain circumstances)
- Trade secrets
- Confidential disclosures
It is important to note that while these exceptions exist, non-enabling prior art can still be used to show that an invention is obvious.
Furthermore, technology companies should ensure confidentiality through non-disclosure agreements when sharing information with third parties before filing a patent application.
How to Avoid Unexpected Prior Art?
To avoid unexpected prior art, it is advised to seek the expertise of a patent attorney who is well-versed in your industry.
To determine whether something qualifies as prior art and the assessment of whether your invention is patentable over prior art can involve intricate legal analysis. A patent attorney’s expertise can help navigate the complexities of patent law and provide guidance on how to proceed with your patent application.
Other Names for Prior Art:
- State of the art
- Background art
