How Can Prior Art Prevent You from Getting a Patent?

The United States Patent and Trademark Office, or USPTO, awards patents exclusively to the creators of inventions that can be considered new. To determine if an invention is new, the USPTO compares the invention with prior art. If prior art relating to the invention is found, the patent application will be refused.

What Exactly is Prior Art?

Prior art includes disclosures, events, references, and any other type of information that has been made available to the public before an inventor either conceives their invention or files a patent application for their invention.

When and How Does Prior Art Prevent a Patent Issue?

Prior art can cause a patent application to be rejected in the following situations:

  • If the invention was described in a printed publication anywhere in the world before the applicant invented it OR 12 months prior to their having submitted an application to the USTPO, a patent will not be issued.

  • If the invention was described in a patent issued anywhere in the world before the applicant invented it OR 12 months prior to their having submitted an application to the USTPO, a patent will not be issued.

  • If the invention was publicly used in the U.S. more than 12 months before the inventor files a patent application, a patent will not be issued.

  • If the invention was publicly known of in the U.S. before the applicant invented it, a patent will not be issued.

  • If the invention was offered for sale more than 12 months prior to the U.S. application being filed, a patent will not be issued.

Simply put, if an invention was published or publicly known prior to your filing date, said information is prior art.

What Kind of Prior Art is Relevant to Your Invention?

Prior art is relevant for everything it discloses. Even if the overall invention is different, aspects of your invention can be “anticipated” if they are described in the prior art. The entire disclosure must be evaluated to determine if aspects of your invention are disclosed or suggested.

Why You Should Conduct a Search for Prior Art

If prior art exists, it can ruin your chances of receiving a patent for your invention. Conducting a search for prior art before applying for a patent is essential. That said, it is a complicated process, as is determining if aspects of your invention are disclosed or suggested in any way in relevant prior art.

Many inventors seek out help from a qualified patent attorney before filing an application, which in the long run, saves them time and money during the patent application process. If you need assistance conducting a patent search, I would be happy to help. Please feel free to contact me at any time with your questions and concerns.

 
Kelly G. Swartz is a patent attorney licensed to practice in front of the United States Patent and Trademark Office and in the state of Florida.  She limits her practice to intellectual property law including patent, trademark, copyright, and trade secrets.