Definition of prior art

Prior art is the term commonly used for rejection reasons by IP Offices around the world. However, what exactly is prior art? When receiving such a refusal reason, what can applicants do to register their inventions for patent protection?

According to an article on Henry law by Michael K. Henry, Ph.D., prior art is, essentially, any evidence that your invention was already publicly known or available, in whole or in part, before the effective filing date of your patent application.

Prior art under U.S. law is defined by federal statute 35 U.S.C. 102, which was amended by the America Invents Act (AIA). Changes to the definition of prior art took effect in March 2013.

Prior art existence

Although most people would think that prior art – the evidence in simpler terms, must be ‘evidence’, meaning that it must be some parts of the existing products or issued patents, it is not actually the case. 

In reality, prior art does not have to be physically present or commercially available. It is sufficient that someone, somewhere, sometime previously described, demonstrated, or created something containing the use of technology that is very similar to the invention in the examination.

As stated in EPO, prior art can be prehistoric cave paintings or a piece of technology that is centuries old, or even a previously described idea that cannot possibly work. In the end, prior art can be anything.

Examples of prior art

The most obvious form of prior art is an existing product as this is the most basic type of expression and can be acknowledged and understood by all. However, as existing products prior art is so widely approved, this can lead many inventors to make a common mistake, assuming that their invention must be novel because they cannot find an existing product containing their invention in the world market.

However, although many inventions never make it to market, there may be evidence of them somewhere. That evidence, in whatever form it takes, will be considered prior art.

In some countries, when a patent application is published publicly in the Official Gazette, and then the application is withdrawn or by some reason, delayed and never got patented, if the applicant decides to register it back in the future, they won’t be able to do it as it has lost its novelty due to the publication of that same invention in the past.

Back to the topic of existing products, when conducting patent searches for the patent registration process, applicants should expand the scope of searching over the existing products/invention in pending in the past and present, focusing even on the elements that might become prior art to your invention.

One of the best systems for this is the European Patent Office’s free database Espacenet which contains 130 million documents, collected and indexed over many years by patent offices in many countries.

AAA IPRIGHT – Global IP – Global Trademark Registration

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