Considerations for an Invalidity Search

Invalidity search is important for a number of reasons. Sometimes, the validity of a patent is brought up during litigation. Oftentimes, a validity search is requested even when no lawsuit has been filed, to identify potential attackers and/or references that challenge the presumption of validity of a subject patent.

Factors affecting validity search

The selected claims of an issued patent, in target determines the scope of an invalidity search. The claims establish the exact legal protection sought by the applicant and agreed to by the patent office. Therefore, the subject features of a validity search are the embodiments of an invention as claimed in the granted patent. Thus, the most important consideration during a validity search is claim interpretation. One must read claim intently to understand their scope, since words and phrases in the claim are deceptive and rigorous.

In fact, most of the patent office allow the patent applicant to be his/her own lexicographer; that is, he/she can create and define the meanings of the words used in his application. This provides a hard challenge for a searcher, as the searcher may then need to carefully study the claims in relation to the specification when executing the validity search. It may not be necessary to validate/invalidate all the claims of the target patent, but only selected few which are relevant to the purpose.

One other factor which affects the scope of a validity search is the search cut-off date. Sometimes, the term “critical date” is an alternate for cut-off date; however, these terms may not always correlate and therefore the searcher should be careful of that. The cut-off date determines the extent of search in terms of time to encompass any prior-art that might defeat the subject patent’s validity. This date is dependent on the patent law of the concerned jurisdiction from which the subject patent originates. Ideally,  the searcher and the client must agree upon the cut-off date.

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