• February 2020
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What Is Prior Art?

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The United States Patent and Trademark Office generally only issues patent protections to those plant species, designs, products, processes and ideas that are new, novel and non-obvious. This baseline provides individuals and businesses with a broad idea of what kinds of inventions and creations may be patentable under the law. But it is not enough to simply insist that an invention or creation is new and novel. Before one’s intellectual property may be protected under U.S. intellectual property laws, it must first be evaluated by the PTO in terms of its novelty and newness. One of the most critical steps in securing a non-provisional patent is illustrating that one’s creative work does not infringe upon so-called prior art.

The concept of prior art is quite complex. But at its most basic, relevant prior art may include ideas, knowledge, research, products, designs, processes, etc. that potentially challenge the novelty or newness of creative work submitted for patent protection via the non-provisional application process. Patent examiners are tasked with ensuring that patent protections are only granted to those eligible pieces of creative work that do not infringe upon protected prior art. In many cases, the existence of protected prior art ultimately leads to the rejection of non-provisional patent applications. Essentially, prior art serves to illustrate that an invention or creation may not be new and therefore may not be eligible for legal patent protection.

However, not all prior art renders a piece of creative work ineligible for patent protection. The complexities of evaluating prior art and the nature of prior art are notorious. People work with patent attorneys before submitting a non-provisional patent application because of these complexities. An attorney will explain how any existing prior art relevant to your invention or creation may impact both your application process and enforcement of any patent protections your work may ultimately be granted.

“Rules” of Prior Art Evaluation

While there are exceptions to many general guidelines in regards to the process of evaluating prior art, there are some rules that are relatively hard and fast. As a result of these rules, it is critical for applicants to conduct a search of existing patents before attempting to patent their work. The public may search for patents in numerous ways, but it can be helpful to have an attorney guide you through this important process. The strictest rules that apply to prior art involve work that has already received legal protection via approved patent applications.

For example, if a patent applicant submits creative work that has already been described in an approved patent application, the current work will not be granted protection. This rule applies to prior art on a global scale, not just to work patented in the United States. Similarly, if the work was described in a printed publication (again, anywhere in the world) prior to the current applicant’s creation of that work, it will not be protected. If an applicant created the work and then the work was described in a printed publication, this event will not generally be considered prior art.

The public use of a product, process, design, etc. more than 12 months before the submission of a patent application may lead to the rejection of that application due to prior art rules. There are numerous other rules that apply to the prior art process. Because defending creative work against prior art is so critical to a successful application process, it is important to discuss any questions you have about prior art with your attorney prior to submitting your formal patent petition.

Intellectual Property Guidance Is Available

The patent application process is notoriously complex and nuanced. In addition, submitting your application as soon as your work becomes eligible for protection will help to ensure that your work is guarded against emerging prior art. Therefore, it is generally a good idea to reach out to LawTrades as soon as you are ready to start the application process. We are a marketplace with intellectual property attorneys with extensive experience guiding both individuals and businesses through the patent application process and helping to ensure that intellectual property rights remain properly enforced once protections have been granted.