In order to successfully navigate the patent application process, an inventor or creator may benefit from working with an attorney in order to conduct a thorough search of existing patents. The U.S. Patent and Trademark Office will not grant new patents that mirror or are too fundamentally similar to other patents granted in the past. As a result, patent searches help current inventors to determine whether the USPTO is likely to grant their creations patent protections or reject their applications for work that is too similar to previously protected products, processes or designs.
However, conducting a thorough patent search is not the only critical step that an individual inventor or innovative business must take before completing a successful patent application. It is also important to conduct a clearance search before completing a non-provisional patent application. A clearance search is distinct from a patent search and is motivated by a different goal. Whereas a patent search helps to determine whether a new product, process or design is eligible for patent protection under USPTO guidelines, a clearance search helps to determine whether a new product, process or design may infringe upon the intellectual property rights associated with past creations.
The Limitations of Patent Searches
When an attorney conducts a patent search, a host of valuable information is uncovered. With this information, an applicant may make an informed decision about whether his or her creation is likely to be deemed too fundamentally similar to a previously protected work. Once the applicant has decided whether or not it makes good sense to continue with the application process or tweak the new invention according to the results of the patent search, the application process may progress accordingly.
However, a patent search will not necessarily inform an inventor about every potential source of prior art that may impact future intellectual property claims. While a thorough patent search may help to guarantee that the USPTO will grant the applicant a patent, it will not give inventors critical information about whether they may later be sued for infringing upon the intellectual property rights of others more generally. Securing a patent does not always insulate an individual or business from future legal claims and liabilities.
Freedom to Operate Opinions
In order to better ensure that one’s creation will not infringe upon the legitimate property rights of others, it is important to complete a freedom to operate opinion, also known as a patent clearance search. This process is even more complex, detailed and tedious than a patent search is, and is therefore best conducted by an experienced intellectual property attorney. Because this service tends to take a great deal of time, it is best to connect with an attorney or legal service with affordable rates.
One of the most pressing reasons to conduct a clearance search is that patent searches do not reveal information about pending patent applications and the most recently approved applications. The USPTO does not disclose information related to non-provisional patent applications until 18 months after these documents are filed. Every pending or recently approved application with a filing date stamped earlier than an applicant’s petition has the potential to feature potentially damaging prior art. Conducting a clearance search will allow an applicant access to this kind of information, which is unavailable during a patent search.
A freedom to operate opinion will also inform an inventor’s decision-making about the patent application process more generally. Once completed, a clearance search will contain analysis related to whether the product, process or design in question is likely to infringe upon another’s work and whether the work in question is likely to trigger an infringement liability claim at some point in the future. Access to this information will help an inventor determine whether the work needs to be changed before a non-provisional application is filed.
Intellectual Property Assistance Is Available
Patent searching is simple, but simple doesn’t mean easy, and the patent search process comes with some serious challenges. If you are interested in securing a patent, conducting a clearance search or obtaining intellectual property protections generally, please consider connecting with the team at LawTrades.