To answer the question “Is my invention already patented?”, you have to do a prior art search to determine what patent applications have been filed with the United States Patent and Trademark Office (“USPTO”) or other countries’ patent offices. In the patent world, the term prior art means disclosures or documents such as scientific publications, patents and patent applications that are known to the public before a patent application is filed. A prior art search is a search of several databases to find prior art. The purpose of a prior art search is to find prior art that could affect the patentability of an invention. To better understand why this is the case, a brief description of how a patent is obtained through the patent examination process is helpful.
To obtain a patent on an invention, a patent attorney will draft a patent application and then file it with the USPTO. After the patent application has been filed, a USPTO examiner will review the patent application to determine the elements of the invention disclosed in the patent application. The USPTO examiner then performs a prior art search to find prior art that disclose some or all of the elements of the invention seeking to be patented.
A prior art search is performed by the USPTO because of United States patent law. Under United States patent law, to be patentable an invention must be patentable subject matter, useful, new, and non-obvious. For a more detailed explanation of these requirements please review my article Can I Patent My Invention? However for now, suffice it to say that if the USPTO examiner finds a single prior art disclosure, or is able to combine two or three prior art disclosures that disclose all elements of the invention seeking to be patented, the examiner will reject the invention as un-patentable in what is known as an office action.
While not legally necessary, many of my clients find that the cost of a patent search is small relative to the cost and time needed for the patenting process. I often recommend to my clients to Google their invention on Google patents so that they conduct their own basic prior art search. Sometimes clients find their invention quickly and look to me for other ways to protect their invention. However, many times clients choose to have a professional prior art search completed before moving forward. For more information about the costs of conducting a prior art search you can go to my website’s pricing page. The patenting process is not an inexpensive process and in many cases can take years for a patent application to complete the examination process. Because of this, many individuals and businesses find it wise to determine the probability that an invention will be granted a patent before deciding to draft, prepare and file a patent application. Determining the probability of acquiring a patent before filing an application also assists an individual or business in deciding what type of patent application to file and is helpful in creating a strategy for protecting ideas and inventions.
If you have any questions, please feel free to contact my office. Fahey Business and Intellectual Property Law (954) 903 1966 or by email at [email protected].
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