Main Reasons Exactly how You Can safeguard and broaden your intellectual property together with Prior Art Searches

Main Reasons Exactly how You Can safeguard and broaden your intellectual property together with Prior Art Searches

The term "prior art" encompasses what is known to the public before a certain time, usually, what is known prior to development of an invention. Prior art includes articles, domestic and foreign published patent applications and issued patents, lectures, slide shows, books, and the like. A prior art search allows you to gain a better understanding of the state of the prior art prior to filing a patent application or releasing a new product to the market.

This article will give basic guidance on three typical prior art searches that may be useful in developing and protecting intellectual property: a state of the art search, a novelty search, and a right to use search.

State of the Art Search

A state of the art search is typically performed to give a general overview of the state of the art in which the inventor is interested. This type of search is typically performed when entering a new technology or the technology in your art develops at a rapid pace. A state of the art search focuses on the most up to date prior art documents, which may minimize time researching specific points concerning the invention.

While a state of the art search can be tailored to cover particular databases, e.g., domestic and foreign issued patents, in order to have the best understanding of the state of the art, the search should be as broad as possible to encompass articles, books, lectures, patent documents, and the like. While the types of art that are searched should be broad, it is recommended to narrow the technology field to a carefully defined area of interest. Likewise, the timeframe of interest should be narrowly tailored to find the most recent developments in the technology of interest.

The results of the search should be reviewed and analyzed by the inventor, with input from a patent attorney as needed. Once an understanding of the state of the technology is understood, the inventor can develop a solution to a problem identified in the prior art, fine tune an already developed invention, apply for a patent, and/or introduce the technology to the marketplace.

Novelty Search

A novelty search (also known as a "patentability search") is typically conducted once an invention is fully developed but before a patent application is prepared. A novelty search allows an inventor to determine whether patent protection is available for his invention, and if so, how broad of protection is available.

Like a state of the art search, a novelty search should have a well defined technology of interest and cover patent documents, articles, books, and other art, to give the inventor a broad understanding of what is known in his field of art. Unlike a state of the art search, the novelty search is not limited in time frame since a prior disclosure of the invention at any time will serve as a bar to patentability.

Review and analysis of the search results will facilitate the determination of patentability of the invention. Since most inventors have a good understanding of what is known in their technology, novelty searches typically function as a tool for patent attorneys to craft claims that are broad enough to protect the invention but not read on the prior art.

Right to Use Search

A right to use search (also known as a "freedom to operate search" or a "clearance search") is used to determine potential obstacles in introducing technology to the marketplace. A right to use search can be conducted with or without any desire to obtain patent protection for the technology. That is, the main concern of a right to use search is whether a specific invention would infringe someone else's patent and not whether patent protection is available. Accordingly, a right to use search focuses on relevant, unexpired patents in the territories of interest.

While state of the art and novelty searches do not necessarily need the review and analysis of a patent attorney, it is highly recommended to have a patent attorney review the results of a right to use search. A patent attorney is often in the best position to opine on the relevancy of the results, whether the patents are unexpired, and whether the proposed technology would infringe any of the patents uncovered by the search. Review and analysis of the search results will determine the risk of introduction of the technology into the marketplace or whether the technology should be modified to avoid infringement of another's patent.

Conclusion

The above-discussed prior art searches are only a few of the tools available to help develop and protect intellectual property. Any or all of the searches may be performed for a specific project, but time and economics will most likely dictate what searches, if any, will be performed. While inventors and patent attorneys have access to many free databases that can be utilized to perform the searches, the Michaud-Kinney Group recommends having the searches performed by a third party search firm. Third party search firms employ highly trained technical searchers that are familiar with multiple databases and are often in the best position to craft the appropriate search parameters.

If you have any questions or need further information about any of the searches discussed herein, please contact an attorney at the Michaud-Kinney Group.

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