Wednesday, July 14, 2010

In Relation to Patents and Inventions, What Is Prior Art?

For the US patent office the word “art” is used to refer to technology and previous knowledge of technology is referred to as “ prior art”. Prior art is the knowledge that existed prior to the date that you invented something related to that invention.
According to the US patent laws, “prior art” means the state of knowledge existing or publicly available either before the date of your invention or more than one year prior to your earliest patent application date.

This prior art knowledge applies to any printed publication, written by anyone at all in any location on the planet in any language if it was published before you invented the item in question. This includes US patents, foreign patent applications, books, magazines, including trade journals, and any publicly available technical papers and abstracts. Even comic books count.

The One Year Rule

US patent law says that you must file a patent application within one year after you sell, offer for sale, or commercially or publicly use or describe you invention idea. Failing to do so will prevent you from getting a patent. You therefore need to be very careful about public disclosure of your idea. Public disclosure does not have to be a printed document; even just using your invention in public can be considered public disclosure. Demonstrating your great new idea at a private party would even be considered public disclosure, so watch out!

There are some exceptions. For instance, if you invented a new accessory for cars that mounts on the bumper, you could mount it on the bumper of your car for testing purposes and as long as you took good records and could prove in a court of law that it was just for testing you could probably get away with it.

The Novelty Test

One of the criteria that your invention must meet is the novelty test. Your invention must be physically different in some way that differentiates it from other related prior developments available to the public anywhere.

In patent law terms those prior developments and concepts are grouped together under the term “prior art”.

Establish a Date of Inception

Since the date of your invention is what determines in part what the prior art is, it is very important that you firmly establish the date of your invention. The public knowledge before that date is what will be prior art.

The US patent office considers who ever is first to invent something the valid inventor, not who files his application first like most of the rest of the world.

If you have no documentation the filing date will be used as your date of inception. If you have good documentation with proof of the date you conceived of your invention idea then that is the date that will be used as long as you followed the rules, like not publicly disclosing your idea more than one year before filing the application, or going for a year or more without working on it etc.

One method to establish the invention date is to describe your invention in detail with drawings and all pertinent information and have it signed and dated by two witnesses who state on the document that they understand your invention. The witnesses should of course be reputable.

If someone files a patent earlier than the date you have for conceiving your idea then the patent application by the other person is considered valid prior art.

The important things to remember are:

Establish a date of inception of your idea with evidence that will hold up in a court of law such as signed statements from witnesses who can be called to testify in a court of law.

If your filing date for your patent application is more than one year after your date of inception be able to prove that you did not “abandon” your invention for more than one year, i.e. be able to show that you have never let more than a year go by without actually doing some kind of work on it.

Do not publicly disclose your idea more than one year before your application filing date which would include any publication of documents, disclosure at public events, offer to sell, or public use of the invention etc.