A Prior-Art is everything about your invention, already available in public before the registration. This simply means that the invention is no longer a novel.
It is basically a proof that an invention like yours exists, already. Prior-art is when someone has previously described or made something very similar to your invention.
National patent laws provide various definitions of what constitutes prior/previous art. However, this may vary from one country to another.
Your patent application is rejected if the examiner is able to prove that your invention is not novel. The court can also annul a granted patent for the same reason.
Prior-Art Pre-requisites
The first step to invalidate a patent is to locate the potential infringing documents against the patent’s claims.
You may, now, wonder what to consider as prior-art and what not?
You can easily figure out the answer by checking the three major pre-requisite conditions:
- Patent application filing date:
A new application is not suitable to get a patent in case you disclose claims. These claims are the ones already present in some existing valid publication. Your invention is a prior or previous art if it is found similar to existing publication before the date of its filing.
- Public availability:
In case the public has access to the mentioned claims before the day of filing, then it is considered as a relevant prior-art. This ensures that the invention is already out among the people and is no longer novel. Thus, making it invalid for attaining patentability.
- Enabling disclosure:
Public disclosure is fruitful when the document enables an average skilled person to practice the invention as claimed. However, the language may only describe the basic idea behind the invention. It does not enables a skilled person to construct the invention. You can consider a document ‘enabling’ in nature only when it is able to educate a skilled person about the invention.
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Valid Forms
You must search for available literature to Invalidate a particular invention. This literature describes the invention in whole or in part. It anticipates the same set of claims, either implicitly or explicitly, in the same composition.
Since the invention is carried out on the basis of its claims; it will no longer be novel over that prior-art document. These art documents are “killer prior-art”.
Valid prior-art
Publications: Prior-art consists of patents, scientific publications, textbooks. It also includes newspapers, lectures, demonstrations, exhibitions, and any other disclosure.
It does not depend on the language, targeted audience, the number of copies and the copies bought/read by third parties. All these instances constitute prior-art as long as the public could gain access.
The same consistency of the same substances or chemicals as another is prior-art. In addition, prior-art consists of all those features that public observes.
However, you must ensure to only demonstrate the product the public. That is because it creates an unfavorable condition for prior-art.
Non-disclosure agreements: The invention disclosure to evaluate the commercial value or to develop a prototype before the day of filing is not a prior-art.
A non-disclosure agreement (NDA) serves the best in maintaining the confidentiality of discussion.
Oral disclosures: Non-confidential discussions between the inventor and a third party also count as prior-art. It can include any oral statements, such as lectures.
In some cases, a transcript or recording (if available) serves as a proof or prior-art.
Thus, it becomes easier to use the transcript as prior-art than to use it as evidence of an earlier disclosure. However, it happens when you file the patent application after the publication of the transcript.
Invalid Forms
The information is not a prior-art if it becomes publicly available after filing date of your application. Similarly, patent applications with the filing date after your application, do not qualify for prior-art.
Invalid prior-art
Publications missing enabling details: The Patent can get rejected as the prior-art if it lacks disclosure of sufficient details crucial for making of the invention.
That is, you should provide enough details about your invention such that anyone can use and easily rebuild it later.
Abandoned Patent Applications: In some few cases, the confidentiality of the abandoned patent applications prevents them to be prior-art.
Trade Secrets: Trade secrets are not used as prior-art because they come under the category of confidential property.
Confidential Disclosers: A company requires disclosure of the invention to grab good deals, investment and interest of partners. However, the party cannot use this disclosed information as prior-art against your patent application. You should also sign an NDA (Non-Disclosure Agreement) with the other party to make the information confidential.
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