Patent Law Practice Center

There is No Prior Art for My Invention

Written by Gene Quinn (of IPWatchdog and Practice Center Contributor)

I frequently am told by inventors that they have searched the marketplace and cannot find anything like their invention. I am also frequently told that they have done a patent search and cannot find anything that remotely resembles what they have come up with. While there are many reasons for not finding prior art, just because you do not find prior art does not mean that there is no prior art that needs to be considered. In fact, it would be extremely rare (if not completely impossible) for there to be an invention that does not have any relevant prior art.  Said another way, unless you have invented something on the level of an Einstein-type invention there is prior art.  Even the greatest American inventor, Thomas Edison, faced prior art for the vast majority of his inventions.

Prior art is probably best understood as information that can be used by the patent examiner to reject claims in a patent application. This information is most commonly prior publications, such as technical articles, issued patents or published patent applications. It is also possible for prior art to consist of actions, such as a sale within the United States more than 12 months prior to a patent application being filed, or public use in the United States more than 12 months prior to a patent application being file. For more on this see What is Prior Art? (more…)