Previous art ( art state or art background ), in most patent law systems, is based on all information already available to the public in the form anything before a certain date that may be relevant to a patent's claim of originality. If an invention has been described in the prior art or is clear to what has been described in the prior art, the invention patent is invalid.
Confidential information, for example, as trade secret, is usually not a prior art, provided that employees and others with access to information fall under non-disclosure obligations. With such obligations, the information is usually not considered an art before. Therefore, patents may be awarded on an invention, although others have known of this invention. A person who uses discovery in secret may in some jurisdictions be able to claim "previous user rights" and thereby obtain the right to continue using this discovery. As a special exception, previously filed and unpublished patent applications must qualify as a prior art on the date of filing them under certain circumstances.
To anticipate the subject of patent claims, previous art is generally expected to provide sufficient description to inform the average worker in the field (or an expert in the arts field) of some falling subject matter. within the scope of the claim. Previous art should be available in several ways to the public, and in many countries, information should be recorded in fixed form somehow. Previous art generally excludes unpublished work or mere conversations (although, according to the European Patent Convention, oral disclosures also form a prior art - see Article 54 (2) of the EPC). It is debatable whether traditional knowledge (eg, the medical nature of a particular plant) is an earlier art.
Patents reveal to the public how an invention is practiced, in return for the right (for a limited period of time) to exclude other parties from production, sale, offer for sale or use patented invention without permission from the patentee. The Patent Office deals with prior art search in the context of patent-granting procedures.
Video Prior art
Effective date of patent and patent application as prior art
It is peculiar for patent offices to treat their own patents and publish patent applications as prior art at the date of their submission, although under the European Patent Convention, this applies only to novelty rather than inventive steps. However, the United States patent law before the Leahy-Smith America Invents Act (AIA) incorporates the Hilmer doctrine, in which US patents and patent application publications are the prior art only as the most effective initial US filing date, that is, also the priority claimed in the patent and publication of the patent application. AIA has abolished the Hilmer doctrine and created a US patent and the publication of a patent application that mentions the name of the previous inventor before the time they are "put forward effectively."
Maps Prior art
Usage in litigation
Arguments that claim prior art are used in defending and invading patent validity. In one US case on this issue, the court said:
- "One that attacks the validity of a patent must present clear and convincing evidence establishing facts leading to the conclusion of the law of invalidity.35 USC Ã, § 282. To establish an invalidity under 35 USC Ã,§ 103 , certain factual predicates are required before the legal conclusions of uncertainty or disorder can be achieved. The underlying factual determinations to be made are
- (1) the scope and content of the prior art;
- (2) the difference between the claimed invention and the prior art;
- (3) the level of ordinary skill in this field; and
- (4) objective evidence of vagueness, such as commercial success, long but unsolved needs, failure of others, copying, and unexpected results. "
- Graham v. John Deere Co., 383 U.S. 1, 17, 148 USPQ 459, 467 (1966).
Previous art search type
Novelty
"New search" is an earlier art search that is often done by a patent attorney, patent agent, or professional patent seeker before the inventor submits a patent application. The new search helps an inventor to determine whether the invention is new before the inventor does the resources necessary to obtain a patent. Search can include searches in patent databases, patent applications and other documents such as utility models and in the scientific literature. New searches can also be used to help the inventor determine what is unique about his invention. Anything not found in the prior art can potentially be patented. Thomas Edison, for example, did not get a patent on the basic concept of a light bulb. It is patented and therefore in the prior art. Instead, Edison got a patent for his repair on the light bulb. These improvements include very thin filaments and reliable techniques for joining the white hot filaments to the room temperature lead cables.
Novelty is also done by the patent examiner during the patent application prosecution. For example, the applicant's search guidelines applicable to the United States can be found in the US Patent Checkup Procedure Manual (MPEP) 904.02 General Guidelines, Prior Art, Classification and Search.
Validity
"Search validity" is an earlier art search done after patent issues. The purpose of the validity (or invalidity) of the search is to find the prior art examined by the patent examiner so that the patent may be declared invalid. This may be done by an entity that infringes, or potentially infringes, patents, or may be perpetrated by the patent owner or other entity that has a treasury stock in the patent to confirm the validity of the patent. Crowdsourcing, where a large number of people are interested in finding previous work, may be effective if references are hard to find.
Clearance
Permission search is a patent search issued to see if a particular product or process infringes on another existing patent. If so, then the search for validity can be done to try to find a prior art that will invalidate the patent. Permission search is the applicable patent search targeting and may be limited to certain countries and groups of countries, or markets.
Disclosure obligation
In the United States, their inventors and patent agents or lawyers are required by law to submit any references they may know to the United States Patent and Trademark Office which may be material to patent claims in the patent application they have filed. The patent examiner will then determine whether the reference qualifies as "prior art" and can then consider it when examining the patent application. If a person has an obligation to disclose, act with deceptive intent, fail to disclose material references that they know correctly, then the patent can be found unworkable for unfair behavior.
Japan also has disclosure duties.
Australia has removed its disclosure obligations with respect to the results of the document search by, or on behalf of, the foreign patent office, unless:
- (a) the normal exam was requested before April 22, 2007,
- (b) searching for foreign patent offices issued before April 22, 2007, and
- (c) receipts (allowances) are officially advertised prior to July 22, 2007.
Public participation in patent examination
With the advent of the Internet, a number of initiatives have been made to create a forum where the wider community can participate in prior art pursuits. These forums are related to published patents and pending patent applications.
Pending patent application
Recently, attempts to use Internet-based discussions opened to encourage public participation to comment on pending US applications have begun. This may be a wiki:
- Patent-to-patent online system for open public patent review.
- Wikipatents. Public patent's clarity: the public may add an earlier art reference to a particular patent.
- patent @ stackexchange. A Q & A site for people interested in improving and participating in the patent system.
Patent testers often use the online encyclopedia Wikipedia as a reference to get the overall feel for a given subject. Quotes from Wikipedia as actual artwork can be a problem, however, because of its fluid and open nature of its editing, and Patents Commissioner Doll says that the agency uses Wikipedia entries as background and not as a basis for accepting or rejecting an application.
See also
- Defensive publication
- Illegal number, illegal prime
- Disclosure statement (IDS)
- Internet as a previous art source
- Micropatent
- Non-binding opinion (English patent law)
- Patent classification
- Patent Watch
- Priority rights
- Public participation in patent examination
- Search reports
The famous prior art database
- Espacenet - A database of the European Patent public patent library, with patents from many patent offices.
- Google Patent - a public search engine from Google that indexes patents from the United States Patent and Trademark Office (USPTO) and other international patent offices, and Google Scholar's non-patent secret CPC-machine secret.
For other patent search services, see Category: Patent search service .
- The Internet Archive Wayback engine is recognized by the USPTO as a legitimate source of prior art on the Internet, although most filing dates are generally considered the first published date, rather than dates on any archived documents.
References
Further reading
-
Tran, Jasper (2014-15). "Time Matters: The Art Age Before It Came Non-compliance Patents". Gonzaga Legal Review . 50 : 189. SSRNÃ, 2562948 . < span> - Blenko, Walter J., Considering What Art Is Formerly in the United States, JOM, 43 (6) (1991), p.Ã, 45. Retrieved 2012-01-27.
External links
Authorized institutions
- World Intellectual Property Organization
- PatentScope, the WIPO search tool for international and national patent collections.
- WIPO Gold, Search for national patent offices including US, Japan, UK and more. Free public gateway tool for WIPO global collection of searchable IP data. "
- United States Patent and Trademark Office
- Patent Application Information Retrieval (PAIR), USPTO search engine for patent application file history and patents display the reasons why patents are issued; search by application number or customer ID.
- Seven Step Strategy, USPTO patent search strategy.
- European Patent Office
- Guide to Exam in EPO, - vi ("State of the art at the search stage")
- Guide to Exam in EPO, g - iv ("State of the art" section, check)
- Legal Research Services for Appeals Board, European Patent Office, EPO Appeals Case Case (8th edition, July 2016), i . c .2: "State of the art"
Source of the article : Wikipedia
0 Comments