Prior art
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Contents
- 1 Prior Art
- 1.1 Sources of Prior Art
- 1.2 Types of Prior Art
- 1.3 Time Considerations
- 1.4 Geographical Scope
- 1.5 Language of Prior Art
- 1.6 Accessibility of Prior Art
- 1.7 Prior Art Searches
- 1.8 Prior Art in Patent Examination
- 1.9 Challenging Patents Based on Prior Art
- 1.10 Non-Patent Literature (NPL)
- 1.11 Emerging Issues in Prior Art
- 1.12 Prior Art and Trade Secrets
- 1.13 Global Perspectives
- 1.14 Strategies for Inventors
- 1.15 Conclusion
- 2 See Also
Prior Art
Prior art refers to all information that has been made available to the public in any form before a given date that might be relevant to a patent's claims of originality. It is used to determine whether an invention is novel and non-obvious, two key requirements for patentability.
Sources of Prior Art
- Patents and patent applications
- Scientific and technical publications
- Public presentations and demonstrations
- Products and devices available in the market
- Online disclosures, including websites and social media
- Trade show exhibitions
- Thesis and dissertations
- Public use or sale of the invention
Types of Prior Art
Anticipatory Prior Art
- Single reference that discloses all elements of the claimed invention
- Used to reject claims based on lack of novelty
Combinatorial Prior Art
- Multiple references that, when combined, disclose all elements of the claimed invention
- Used in obviousness rejections
Time Considerations
- Critical date: The effective filing date of the patent application
- Grace period: Some jurisdictions allow limited disclosures by the inventor within a specific period before filing
Geographical Scope
- Most jurisdictions consider prior art from anywhere in the world
- Some countries previously had geographical limitations (e.g., pre-AIA U.S. system)
Language of Prior Art
- Prior art in any language is generally considered
- Translation may be required for examination or litigation purposes
Accessibility of Prior Art
- Must be publicly available
- Hidden or secret prior art generally not considered
Prior Art Searches
Types of Searches
- Patentability search: Conducted before filing a patent application
- Validity search: To challenge or defend an existing patent
- Freedom-to-operate search: To assess risk of infringing existing patents
Search Strategies
Prior Art in Patent Examination
- Patent examiners conduct searches to identify relevant prior art
- Applicants have a duty to disclose known relevant prior art in many jurisdictions
Challenging Patents Based on Prior Art
- Post-grant proceedings: e.g., Inter Partes Review in the US
- Opposition proceedings: e.g., in the European Patent Office
- Litigation: Prior art can be used to invalidate patents in court
Non-Patent Literature (NPL)
- Increasingly important source of prior art
- Includes academic papers, technical standards, and online publications
- Challenges in searching and verifying NPL prior art
Emerging Issues in Prior Art
- Artificial Intelligence-generated content as prior art
- Blockchain for verifying and dating digital disclosures
- Internet archives and the challenge of establishing publication dates
Prior Art and Trade Secrets
- Information kept as a trade secret is not considered prior art
- Public disclosure of a trade secret can create prior art
Global Perspectives
- Different jurisdictions may have varying standards for what constitutes prior art
- Harmonization efforts aim to standardize prior art considerations globally
Strategies for Inventors
- Conduct thorough prior art searches before filing
- Document the invention process to distinguish from prior art
- Consider provisional applications to establish an early priority date
Conclusion
Understanding and effectively dealing with prior art is crucial in the patent process. It affects the patentability of inventions, the scope of granted patents, and the validity of existing patents. As technology evolves, so do the challenges and methods of identifying and analyzing prior art.
