Patent is a set of exclusive proprietary rights that are granted by the Federal Government for the physical embodiment of a certain classes of new inventions.It can be granted to a product or a process that offers technical solution to a problem in a new way that has an inventive step, is non-obvious to a person ordinarily skilled in the specified field and has industrial applicability. Patent conceptualizes the bargain between the inventor and the public. An inventor in exchange of his disclosure, gets the right to exploit it for a limited time of twenty years.
For an inventor, to get a patent, it is foremost to know about the pre-existing art having the same or related kind of technology, utility and design. Prior Art under patent law is any information available to the public on the basis of which the patent examiner can reject your patent application. USPTO provides a structured search databases which can be used to identify prior art however, the facade lies here between the actual available inventions and the information about the inventions present in the database. In today’s technology, deep web search tools, patent analytics, source code databases, case law databases provide extensive search techniques. Prior art doesn’t have to be a granted patent, commercially available or even in any tangible form.Mere evidence that someone somewhere had the knowledge of the same kind of invention as yours and is all set to launch a similar product can make your invention ineligible for a patent grant.
Not being able to find the pre-existing inventions cannot be the ground for an exemption from patent infringement also, therefore, a thorough prior art search is essential and ethical before you apply for a patent or commercialize your product/process. A search is necessary because it’ll provide you the insight about the existing similar innovations and the field where your invention fits which will aid you later in drafting patent application.
The repercussions of filing a blind patent without prior search can be disastrous. Let’s assume a hypothetical start-up company is looking to establish a business based on the various inventions they claim to have done. They file a patent expecting it to get issued, in case the patent examiner doesn’t find a prior art. When the business is all set to go, you face a litigation from a party warning you of patent infringement. It is very well known that patent offices have a full-proof method of finding a prior art. So, it is fundamental that if you’re filing a patent you must have a search done by an expert patent professional and the search will help you in bettering your invention as you’ll find numerous others similar to yours.Hence, it’ll help you expand the scope of your invention for getting patented.
Most of the judgments in U.S. on obviousness come out of the prior art overlapping claim range which makes a prima facie obviousness case. This ratio has been followed in various cases such as In re Wertheim, Titanium Metals v. Banner and In re Harris. In another case of Graham v. John Deere Co., the Supreme Court clarified on the non-obviousness requirement in US Patent law. The plaintiff in this case had a patent registered US Patent ‘811 which he had got without a prior search. He made an improvement and filed for another patent few years later which was rejected by the patent examiner as the defendant held the patent for the improvement. The consequences of not having done a prior search can be as grave as losing the charm of the technology you create.
There are two steps which are followed in a professional search. Firstly, you need to hire a professional or patent attorney who understands the technical hitches that are faced while explaining an invention. Then the expert will draft the same to a technical researcher or scientist who will then establish the search parameters. The necessity of hiring a professional guide can be understood if one can envisage the thoroughness of the examiner and the difference between actual prior art and the interpretation of the inventor. A professional can help you understand how relevant a prior art is and ensure your patent application in a way.