Prior art (also known as or state of the art, which also has other meanings) in most systems of patent law constitutes all information that has been made available to the public in any form before a given date that might be relevant to a patent's claims of originality. If an invention has been described in prior art, a patent on that invention is not valid. Within the context of a national or multilateral body of law, an invention is patentable if it meets the relevant legal conditions to be granted a patent. ... In patent law, an inventor is the person, or persons in United States patent law, who contribute to the claims of a patentable invention. ... Within the context of a national or multilateral body of law, an invention is patentable or, in other words, it satisfies the patentability requirements if it meets the legal conditions to be granted a patent. ... Novelty is a patentability test, according to which an invention is not patentable if it was already known before the date of filing, or before the date of priority if a priority is claimed, of the patent application. ... The inventive step and non-obviousness reflect a same general patentability requirement present in most patent laws, according to which an invention should be sufficiently inventive, i. ... In United States patent law, utility is a patentability requirement. ... In patent law, industrial applicability or industrial application is a patentability requirement according to which a patent can only be granted for an invention which is susceptible of industrial application, i. ... The person having ordinary skill in the art (often abbreviated PHOSITA in the United States), the person skilled in the art or the man skilled in the art is a legal fiction found in many patent laws throughout the world. ... The state of the art is the highest level of development, as of a device, technique, or scientific field, achieved at a particular time. ... A patent is a set of exclusive rights granted by a state to a patentee (the inventor or assignee) for a fixed period of time in exchange for the regulated, public disclosure of certain details of a device, method, process or composition of matter (substance) (known as an invention) which... The ASCII codes for the word Wikipedia represented in binary, the numeral system most commonly used for encoding computer information. ... An invention is an object, process, or technique which displays an element of novelty. ...

Information kept secret, for instance as a trade secret, is not usually prior art provided that employees and others with access to the information are under a non-disclosure obligation. Absent such an obligation, the information will typically be regarded as prior art. Generally, this means that a patent may be granted on an invention despite the fact that someone else knew of the invention. A person who used an invention in secret may in some jurisdictions be able to claim "prior user rights" and thereby gain the right to continue using the invention. As a special exception, earlier-filed and unpublished patent applications do qualify as prior art as of their filing date in certain circumstances. A trade secret is a formula, practice, process, design, instrument, pattern, or compilation of information used by a business to obtain an advantage over competitors within the same industry or profession. ... A patent application is a request pending at a patent office for the grant of a patent for the invention described and claimed by that application. ...

In most patent systems, in order to anticipate a claim, prior art is expected to provide a description sufficient to inform the average worker in the field (or the person skilled in the art) of some subject matter falling within the scope of the claim. Prior art must be available in some way to the public, and many countries require the information to be recorded in a fixed form somehow. Again, in most patent systems, prior art does not include unpublished work or mere conversations (though according to the European Patent Convention, oral disclosures also form prior art — see Article 54(2) EPC). It is disputed whether traditional knowledge (e.g. of medical properties of a certain plant) constitutes prior art. A person having ordinary skill in the art (PHOSITA) or the person skilled in the art is a legal fiction defined in the Patent Act of the United States, and similarly by other patent laws in the world. ... The Convention on the Grant of European Patents of 5 October 1973, commonly known as the European Patent Convention (EPC), is a multilateral treaty instituting the European Patent Organisation and providing an autonomous legal system according to which European patents are granted. ... The Convention on the Grant of European Patents of 5 October 1973, commonly known as the European Patent Convention (EPC), is a multilateral treaty instituting the European Patent Organisation and providing an autonomous legal system according to which European patents are granted. ... Traditional knowledge (TK), indigenous knowledge (IK), and local knowledge generally refer to the matured long-standing traditions and practices of certain regional, indigenous, or local communities. ... See drugs, medication, and pharmacology for substances that are used to treat patients. ...

Patents disclose to society how an invention is practiced, in return for the right (during a limited term) to exclude others from manufacturing, selling, offering for sale or using the patented invention without the patentee's permission. Patent offices deal with prior art searches in the context of the patent granting procedure. To assess the validity of a patent application, patent offices explore the prior art that was disclosed before the invention occurred (in the United States) or before the filing date (in the rest of the world).

First-to-invent versus first-to-file systems

Main article: First to file and first to invent

The United States uses a first-to-invent system. Invention is generally defined to comprise two steps: conception of the invention and reduction to practice of the invention. When an inventor conceives of an invention and diligently reduces the invention to practice (by filing a patent application, by practicing the invention, etc), the inventor's date of invention will be the date of conception. Thus, provided an inventor is diligent in reducing an application to practice, he or she will be the first inventor and the inventor entitled to a patent, even if another files a patent application (reduces the invention to practice) before the inventor.^[1] A patent is a set of exclusive rights granted by a state to a patentee (the inventor or assignee) for a fixed period of time in exchange for the regulated, public disclosure of certain details of a device, method, process or composition of matter (substance) (known as an invention) which... The history of patents and patent laws is generally considered to have started in Italy with a Venetian Statute of 1474. ... Patents are legal instruments intended for controlling technology-driven socio-economic progress and providing a general benefit for the society as a whole. ... Patent prosecution describes the interaction between an Applicant, or their representative, and a patent office with regard to a patent, or an application for a patent. ... A patent application is a request pending at a patent office for the grant of a patent for the invention described and claimed by that application. ... Within the context of a national or multilateral body of law, an invention is patentable if it meets the relevant legal conditions to be granted a patent. ... The examples and perspective in this article or section may not represent a worldwide view. ... It has been suggested that Licensing (strategic alliance) be merged into this article or section. ... European patent law covers a wide range of legislations including national patent laws, the Strasbourg Convention of 1963, the European Patent Convention of 1973, and a number of European Union directives and regulations. ... Japanese patent law is based on the first-to-file principle and is mainly given force by the Patent Act (特許法 Tokkyohō) of Japan which consists of 204 articles. ... The United States patent law is a first-to-invent patent legal framework in contrast to all other national patent laws. ... This is a list of legal concepts relating to patents, including special types of patents and patent applications. ... First to file and first to invent are legal concepts that define who has the right to the grant of a patent for an invention. ...

Every country other than the United States uses a first-to-file system. This means that, regardless of who the first inventor was, the person or legal entity who files a patent application first is the one who can be granted a patent for the invention. The first-to-invent versus first-to-file rule is one of the major dichotomies between U.S. patent law and the patents systems of other nations. Harmonization efforts are underway with the goal being to unify the patent laws of various nations so that inventors have the same rights regardless of in which country a patent is granted.

Other considerations

Although patents normally go to the first inventor under a first-to-file system, an inventor who keeps the information secret or just does not publish generally loses the right to the patent and also does not establish prior art. Without prior art, a later inventor can get a valid patent on the same invention and then apply it against earlier inventor(s). All this is easily prevented simply by recognizing the invention and applying for a patent, or by publishing details of how to practice the invention, thus creating prior art.

Prior art searching and novelty searches

Prior art searches or novelty searches are often conducted before filing a patent application or after filing to find one or more publications that predate the filing date of an issued patent or pending patent application. A prior art search helps an inventor determine if the invention is novel before committing the resources necessary to obtain a patent. This type of search is called a novelty search. Prior art searches may also be used to invalidate existing patents (these searches are called "validity searches" or "invalidity searches") by showing that the patent office erred in the issuance of a patent because the patent holder is not the first inventor. A patent application is a request pending at a patent office for the grant of a patent for the invention described and claimed by that application. ... The filing date of a patent application is the date the patent application was filed in one or more patent offices. ... Look up novelty in Wiktionary, the free dictionary. ...

Prior art searches are also useful to determine what a patent or patent application is really worth, before acquiring it or taking a license. If a publication predates the filing date of a patent application and discloses one or more features of an invention, then that publication is "material to the patentability of the claimed invention", and is considered to be prior art.

In the United States, inventors and their patent agents or attorneys are required by law to submit any prior art they are aware of to the United States Patent and Trademark Office so that the patent examiner can take the prior art into account when examining the patent application. A patent attorney is an attorney who has the specialized qualifications necessary for representing clients in obtaining patents and acting in all matters and procedures relating to patent law and practice, such as filing an opposition. ... PTO headquarters in Alexandria The United States Patent and Trademark Office (PTO or USPTO) is an agency in the United States Department of Commerce that provides patent and trademark protection to inventors and businesses for their inventions and corporate and product identification. ... A patent clerk or patent examiner is an employee, usually a civil servant, working within a patent office and whose work is to examine patent applications as to whether they deserve a patent. ...

If prior art is discovered after a patent issues, it can be used to invalidate the patent. This can be done by a reexamination proceeding in the U.S., or an opposition proceeding in Europe or Japan. In United States patent law, a reexamination is a process whereby a third party or inventor can have their patent application reexamined by a patent examiner to verify that it is valid. ... An opposition proceeding is an administrative process available under the patent and trademark law of most juridictions which allows third parties to dispute the validity of a granted patent or trademark. ... World map showing the location of Europe. ...

Another type of patent search similar to a prior art search is a clearance search. A clearance search is done in order to see if a given product or process violates someone else's existing patent. If so, then a validity search may be done to try and find prior art that would invalidate the patent. In patent law, a clearance search is a search done on issued patents or on pending patent applications to determine if a product or process infringes any of the claims of the issued patents or pending patent applications. ...

Public participation in patent examination

Main article: Public participation in patent examination

With the advent of the Internet, a number of initiatives have been undertaken to create a forum where the public at large can participate in prior art searches. These forums have been related to both issued patents and pending patent applications. The involvement of the public in patent examination has been proposed to help identifying relevant prior art and, more generally, to help assessing whether patent applications and inventions meet the requirements of patent law, such as novelty, inventive step or non-obviousness, and sufficiency of disclosure. ...

Pending patent applications

More recently, different attempts to employ a wiki format for encouraging public participation commenting on pending US applications have been started. These include: Look up Wiki in Wiktionary, the free dictionary. ...

• Peer to Patent online system for open, community patent review.
• Wikipatents. Public patent clarity: the public can add prior art references for a given patent.

Wikipedia itself is often used by patent examiners as a reference to get an overall feel for a given subject. Citations of Wikipedia as actual prior art are problematic, however, due to the fluid and open nature of its editing.^[2]

Relevant art

The United States Patent and Trademark Office (USPTO) refers to searching highly "relevant art" areas.^[3] Relevant art includes current art whether prior or not.^[4] Patent attorneys recommend using the term relevant art for material that is not obviously in the public domain.^{[citation needed]} Relevant art is preferred over prior art as not admitting that the material is "prior" when the priority of one or more patents has not been litigated.^{[citation needed]} PTO headquarters in Alexandria The United States Patent and Trademark Office (PTO or USPTO) is an agency in the United States Department of Commerce that provides patent and trademark protection to inventors and businesses for their inventions and corporate and product identification. ...

References

BusinessWeek is a business magazine published by McGraw-Hill. ... The Chartered Institute of Patent Attorneys (CIPA) is the British professional body of patent attorneys. ...

See also

• esp@cenet - European Patent Office public prior art database.
• Information disclosure statement (IDS)
• Micropatent
• Patent classification
• Patent watch
• Peanut butter and jelly sandwich: a patent with prior art disputes
• Priority right
• Defensive publication
• Public participation in patent examination

esp@cenet is a free online service for searching patents and patent applications. ... The European Patent Organisation (EPO or EPOrg in order to distinguish it from the European Patent Office, which is the main organ of the organisation) is a public international organisation set up by the European Patent Convention. ... An information disclosure statement (often abbreviated as IDS) refers to a submission of relevant background art or information to the United States Patent and Trademark Office (USPTO) by an applicant for a patent during the patent prosecution process. ... Micropatent is a subsidiary of the Thomson Corporation. ... A patent classification is a way the examiners of patent offices or other people arrange documents, such as patent applications, disclosing inventions according to the technical features of the inventions. ... In patent law, a patent watch is a process for monitoring newly issued patents on a periodic basis to see if any of these patents might be of interest. ... A peanut butter and jelly sandwich with a glass of milk The peanut butter and jelly sandwich, also known as a peanut butter and jam sandwich (PBJ or PB&J or P&J), is a common sandwich in the United States, Canada and Australia. ... The Paris Convention for the Protection of Industrial Property, signed in Paris, France, on March 20, 1883, is an important and one of the first intellectual property treaties. ... Defensive publication, or defensive disclosure, is an intellectual property strategy used to prevent another party from obtaining a patent by the early disclosure of an enabling publication. ... The involvement of the public in patent examination has been proposed to help identifying relevant prior art and, more generally, to help assessing whether patent applications and inventions meet the requirements of patent law, such as novelty, inventive step or non-obviousness, and sufficiency of disclosure. ...

Further reading

• Arnoud Engelfriet, When is something prior art against a patent?, iusmentis.com web site, October 1, 2005, retrieved on June 3, 2006
• Walter J. Blenko, Considering What Constitutes Prior Art in the United States, JOM, 43 (6) (1991), p. 45

External links

Official institutions

• WIPO
  • WIPO search engine for international PCT patent applications
  • Links to national patent offices including US, Japan, UK etc.
• USPTO
  • USPTO.gov - Free access to US patents.
  • USPTO search engine for patent and patent application file histories. Displays reasons why patents are issued.
• PATLIB - European Patent Library network

Other web sites

• PatentHunter - Desktop software allows for patent searching of U.S. patents and foreign patents including patent image downloading.
• Google Patent Search, enables a search through United States patents
• FreePatentsOnline.com - Free prior art searching (US patents, US applications, and EP patents), notification service, and RSS feeds of new patents
• IP.com Prior Art Database
• IP Newsflash free patent family search
• Open Source as Prior Art - including HowTo search for Prior Art in the Internet and Example Prior Art search for a real Patent
• Free biomedical patent search for genes and species.
• WikiPatents - Community Patent Review
• PatentMatic - Free patent (US, European, Japanese etc.) downloading tool
• (Chinese) PatentExpress - Free prior art search(US patent)
• SurfIP - Free patent meta search engine covering US, European and Asian data sources].
• Russian Prior Art search - in the database of Russian patents and applications.