Prior Art
Prior Art is a legal term you will often hear if you apply for a patent or talk
to a patent attorney. It means anything already known, disclosed or recorded in
any form whatsoever that has any impact on the novelty or inventiveness of your
idea.
Is Prior Art Limited to Patents?
The short answer to the question "is prior art limited to patents" is a resounding
NO!
Prior Art encompasses:
- every period in history
- every means of expression (including someone just doing it their backyard or writing
it on a napkin and leaving it in a bar)
- every unworkable and pointless idea that has ever been recorded anywhere in the
world.
So just because you or the people you speak to have not heard about anything like
your invention - does not mean that sometime, somehow or somewhere in the world
it has been done before.
When you apply for your patent and it is being examined, the citations that the
Patent Examiner references are typically limited to patent publications. This is
because the patent records are the most accessible form of material available to
the examiner. Comparing this to the definition of Prior Art above - is it quite
clear that there are significant limitations to what is uncovered in a Patent Search.
Patent Search Limitations
A Patent Search locates patents that have been disclosed to the public. The failure
of a Patent Search to uncover relevant publications is not, however, a guarantee
that relevant information does not exist. A patent search is a search of the various
patent databases maintained by the patent authorities around the world. It does
not search other forms of information such as technical papers, academic publications,
conference hand outs or other published journals and books - unless these forms
of prior art are particularly relevant to the technical field being investigated.
Some publications contained on the patent databases may not be located for one of
many reasons including:
- patents typically publish 18 months after the initial filing date
- data is entered manually by patent offices and inevitably errors and inaccuracies
will occur such as mis-indexing, misclassification and spelling errors
- terms used in patents have technical meanings that are different from their everyday
meanings
- patent examiners may not classify a patent application into the most appropriate
classifications
- an organisation may have changed their name or acquired patents via purchasing or
licensing.
With our experience, we are aware of the limitations and potential pitfalls and
employ a comprehensive approach to our search strategies to minimise the risk of
missing that important piece of Prior Art.