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Patents: What is prior art?

by | Apr 18, 2018 | Blog

If you have an idea which you think is patentable, you may decide you want to move forward and try to obtain patent protection. Before you can proceed with protecting your invention, however, it’s important that you understand what is known as “prior art.”

That term is used to describe all publicly available information, anywhere in the world, that in some way relates to your invention. You cannot receive a patent unless your invention is new, as compared to what is taught in the prior art.


All that is known


Prior art includes information disclosed in issued US and foreign patents, published patent applications, technical journals, products that are or have been on the market, articles, conference proceedings, web sites, etc.


Inventors often have a good sense, through their own knowledge and research of the marketplace, if their idea or something like it has been used in a product or service that is currently available for purchase.


Novelty search


However, it is also generally a good idea to have a patent attorney perform a ‘novelty search’, primarily reviewing issued patents and published patent applications. It sometimes is the case that, while an idea is not found in any products currently in the marketplace, someone may have disclosed the idea and even patented it, but for some reason was not able to commercialize their invention.

Using the search results

Once the novelty search is complete, both the inventor and attorney review the closest prior art that was found, and then decide whether or not to move forward with filing a patent application. If the exact invention has previously been patented, then of course the invention cannot be patented for a second time.

But the more common situation is that only related (not exactly the same) inventions are found. If a patent application is then prepared, having done a novelty search helps to strengthen the application by helping to focus on those aspects of the invention which differ from the prior art. 

A complex process

Having a novelty search performed is one of the many ways in which a patent attorney can be very helpful in guiding you in the complicated process of obtaining patent protection for your idea.