This article explains the difference between patents and prior art. Learn how you can search for both of these on your own, and for free.
Searching for prior art is a substantial early step for anyone interested in obtaining a patent for their new product idea.
I always recommend that you start off filing a provisional patent application, instead of a utility patent application, because it is much cheaper and easier to obtain.
Provisional patents allow you to say your product is “patent pending” for one year and you can use this time to determine whether or not a full utility patent is worth it.
But whether you are hoping to file a provisional or full utility patent for your own product, you still need to conduct a prior patent and artwork search.
Luckily, given modern search engine technology, conducting a prior artwork search isn’t rocket science or as difficult as you may imagine.
The internet is brimming with numerous resources that make the process much easier.
In order to launch the hunt, you need to first understand what “prior art” means and includes.
What Exactly Is Prior Art?
Any innovation that has been publicly disclosed and has been granted a patent in the United States or overseas, or was generally recognized prior to an applicant submitting a patent application is considered “prior art.”
When applying for a patent for your innovation, it is crucial to do a prior art search since the USPTO (United States Patent and Trademark Office) requires inventions to be original and distinct from prior art.
An applicant must establish that their invention is novel and not obvious to be granted a patent in the United States.
Patent applicants must demonstrate that their invention differs from everything that has already been granted a patent and has been made publicly known to prove their case.
In simple words, any idea or concept that already exists constitutes prior art and cannot be patented. It is evidence that the invention you thought of is in fact already well-known.
It is not vital that the prior art is physically existent or readily available on the market.
It is sufficient if something that uses a technique that is very comparable to your invention has already been created, demonstrated, or described by someone, somewhere, at some point in the past.
Prior Artwork vs. Patented Artwork
You must be wondering whether the artwork you discovered online actually needs to be patented in order to qualify as “prior artwork.”
That’s what is believed to be the case, but it isn’t. Prior artwork is anything that is already widely known.
If you attempt to replicate an idea that already exists, but doesn’t have a patent, it is likely that your patent application will be denied because the novelty of the invention is what makes it eligible for a patent.
It has no worth if it doesn’t offer anything novel or unique.
In essence, every publication in any format or medium qualifies as prior art, including books, newspapers, lectures, exhibitions, and scientific publications as well as patents and other disclosures.
The publication of the artwork, regardless of format or language, the number of copies, the target audience, or the location are irrelevant.
The only thing that counts is whether the document was accessible to the general public.
Simply put, you cannot claim ownership of a prior work of art if it already exists.
Patent or no patent, it will be regarded as previously produced art.
This means you’re not off the hook even if you have determined that there does not exist a prior patent on your own product idea.
You need to additionally determine that no prior artwork for your idea exists.
Can I Do a Patent Search Myself?
You must determine whether the rest of the world has seen or is familiar with your product concept in order to determine its originality.
Where should you begin?
Most invention promotion companies like Invent Help and the now defunct World Patent Marketing, offer to conduct patent searches for their clients, but at a very high price.
But don’t trust them. It’s one of their scam techniques, because they almost always come back saying that your product is novel, totally unique and one of a kind.
They will always tell you that you have a fantastic idea that is patentable, and it will surely sell like crazy.
They don’t want to tell you about prior artwork that may exist, because they don’t want to dissuade you from pursuing your idea, since that means they will stop getting paid.
More scrupulous, but also very expensive, is hiring a patent attorney to conduct a prior artwork search for you. You can trust their results, but it will cost you a lot.
There are also freelance legal professionals, from lawyers to law students, paralegals, etc.. on sites like Upwork that offer to conduct professional patent searches.
This is a more affordable option if you can find someone who knows what they are doing.
But why not bypass this cost altogether and conduct the search yourself? This is usually more than sufficient in the beginning stages of a startup.
Where To Search
The easiest place to start is Google.com. Check out everything that is even somewhat connected to your idea when you search. Brainstorm to form a list of keywords that describe your product.
Then, plug them into all the Google search categories including Images, News, Videos, Books and more, to help widen my search and get better results for prior artwork related to your product idea.
Of course take note of any similar products that are already for sale online or in retail stores.
Another helpful resource is the Google Patent Search. It is much more user friendly than the USPTO site (which I will discuss later), so I recommend you start your patent search here.
A massive collection of literature, including software, applications, manuscripts, and published articles, can be searched using Google Patent.
The information is given in a comprehensible way, and the results can be obtained immediately in PDF format.
Go back to your list of relevant keywords and remember to place any word combinations in quotes for better results. For example, “3D printers” instead of 3D printers.
Patent Search Databases
The United States Patent and Trademark Office (USPTO) website is the place to begin a deeper search. You simply use the main search bar at the top right of the homepage.
Plug in various descriptions of your invention and consider synonyms for any phrases you might use to explain or describe your idea and try to be as comprehensive as you can.
Do note that you have to put a CPC scheme (Cooperative Patent Classification) together with your descriptive keywords.
For example, if you are searching for electrically heated socks, you type in “CPC electrically heated socks,” “CPC Chargeable socks” or “CPC Electrical Socks,” for example.
You can perform this search as many times as you wish, looking for different keywords to discover the categorization names that appear to be the most applicable to your innovation.
Alternatively, you can go back to the homepage where you will find an option called ‘Find it fast’.
Using that, you can reach the ‘Patent Public Search’ which can help you search a patent through ‘AND’ and ‘OR’ operators which are usually known as the Boolean Operators.
Basically, with ‘AND’ in between your keywords, it will provide results that include all words whereas ‘OR’ will include either.
You will be shown a list of issued patents after clicking Search. To view the complete text of any listed patents, click on the patent’s number or title.
Skim at least the first page of each entry. Make a note of any that seem incredibly similar to your invention if you notice any.
After the results are shown, the documents can also be marked for further review. You can check out the documents with tags. Then, analyze the drawings, claims, and parameters one at a time.
If searching the USPTO on your own feels overwhelming, don’t worry because you can get free, in person help.
The USPTO has authorized a network of public, state, and university libraries around the country to serve as Patent and Trademark Resource Centers (PTRCs), which assist users in doing patent and trademark searches.
Most states have one or more of these libraries, and you can use this map to find the one closest to you.
Staff members of the PTRC library are qualified information specialists who may obtain patent and trademark information by using search engines.
When it comes to assisting small firms and inventors in finding the knowledge they require to safeguard their intellectual property, they offer the human touch that neither a website nor a book can.
Their representatives have access to tools like TESS, the Trademark Electronic Search System, and Patent Public Search.
They point you in the right direction and describe the application procedure and cost structure. They can also teach you how to do a patent or trademark search using the available search tools.
The staff has knowledge of nearby patent attorneys who are authorized to represent clients before the USPTO.
The public can access patent and trademark information in a number of media formats, including online, microfilm, and print.
Prior art encompasses any concepts that are known to the public and that have been made publicly known and is not just restricted to already issued patent applications.
As a result, a thorough prior art search should go beyond searching for patents.
YouTube is an easy place to find videos on commercial products that may be competing with your own.
But it is also a resource for finding video recordings of lectures, scientific conferences, and other more obscure venues that may disclose prior art related to your product idea.
Google Scholar offers access to journal articles from throughout the world. Publications from every disciplinary area are included.
You can utilize Compendex, IEEE Explore, ACM Library, etc. for a platform that is more geared towards computer science or engineering.
Also consider visiting a local public university to conduct searches for academic papers. Most public college libraries and their collections are open to the public.
Prior art can consist of technical reports and research, which are often conducted by governments or funded by private enterprises.
These reports frequently touch on topics related to energy, medicine, the environment, and aerospace science.
NTIS National Technical Reports Library and NASA Technical Reports Server are platforms which are very much accessible by the general public, and a good place to start looking for prior art.
Books and Dissertations
Google Books and WorldCat are the two most well-known sites for finding books. Complete text searches of digitized books from dozens of US and European institutions are available.
Although there is no full text available, some books do offer in-depth previews.
To access dissertations or Master’s theses regarding your idea that you want to get patented, you can check out Spectrum. It has texts that trace back to 1967.
A good idea does not automatically imply that it is patentable or that it will make a good invention. Due to a variety of factors, many inventions fail to achieve success.
On the other hand, a lot of patents are invalidated because they infringe on other patents, and this is typically caused by ineffective artwork searches.
It can easily be avoided by conducting a thorough prior artwork search using a variety of resources available in person and on the internet.
Therefore, looking for prior art shouldn’t be seen as merely a formality but rather as an important step—especially because it’s relatively simple to undertake on your own.
Finally, let me end by saying that finding prior art is NOT necessarily the end of your project. Most patents can be worked around with relatively minor changes to your solution.
Written by Jessica Teel.
Other content you may like:
- How to File a U.S. Provisional Patent Application (PPA)
- Patent, Copyright, Trademark, or NDA: How to Protect Your Idea
- How to Not Get Ripped Off Bringing Your Invention to Market
- 10 Ways to Find Engineers to Develop Your New Product
- 5 Critical Steps Before Full Product Development
Very interesting. Thanks again for a really useful article
Thanks Paul, and I always appreciate your comments.
An excellent introduction to prior art searching. I think it’s important to point out that the legal “backbone” of a patent is the claims section. Information contained in the background and detailed descriptions of a “preferred embodiment” are not legally binding should an infringement action get to a courtroom. Only the claims legally define coverage of the patent.
Second, I’m uncomfortable with the term “prior artwork.” In the context of patents, “art” refers to a creative process, as in the term “state-of-the-art.” However, “artwork” refers to a work of art as in graphic images, photographs, and illustrations. So, in the context of a utility patent, “prior art” simply means the output of a creative process that already exists, as in the design of a product that is useful. Artwork is protected by a copyright and an artistic design, like the shape of the old Coca-Cola bottle, are protected by a design patent.
(owner of five patents and an expert witness in two patent infringement lawsuits)
Fantastic feedback as always Bill! Thanks for sharing!