Frequently Asked Questions
What is prior art?
Prior art refers to public sources of pre-existing knowledge and technology. These sources include patents, publications, products, devices, and activities.
A trade secret subject to a non-disclosure agreement would not be prior art.
What are the sources of prior art?
The reservoir of prior art is vast. Common sources of prior art are patent publications and non-patent literature. The latter includes journals, books, academic work, product literature, and internet publications. Prior art includes product embodiments and evidence of sale or public use.
Each source of prior art requires a different search approach. The applicability of these sources depends on the subject area of technology.
Patent collections are easier to search than most other sources of prior art. Patents are well indexed and allow accurate information retrieval.
What is the date of invention?
A prior art search attempts to locate prior art that predates the date of invention of the target patent. In most of the world, including the U.S. since 2013, the date of invention is the filing date of the patent application. In such a country, the search tries to locate references that precede that filing date.
Do I need to conduct a patentability search?
"An applicant has no duty to conduct a prior art search as a prerequisite to filing an application for patent." MPEP ยง 410 (9th Ed., revised June 2020). See also Frazier v. Roussel Cine Photo Tech, Inc., 417 F.3d 1230 (Fed. Cir. 2005).
We nonetheless recommend that individual inventors get a patentability search in most situations. The U.S. Patent and Trademark Office (USPTO) advises inventors to search the prior art:
A search of all previous public disclosures (prior art) including, but not limited to previously patented inventions in the U.S. (prior art) should be conducted to determine if your invention has been publicly disclosed and thus is not patentable. A search of foreign patents and printed publications should also be conducted. While a search of the prior art before the filing of an application is not required, it is advisable to do so. - USPTO FAQ: "How do I know if my invention is patentable?
Can I conduct a patentability search myself?
To save money, inventors sometimes conduct a patentability search themselves. Inventor searches can be educational and helpful as a first step. But inventors often find nothing relevant even though relevant references exist.
Like many do-it-yourself projects, a professional will probably achieve better results.
You can do a patent search yourself. You can also try to overhaul your car's engine yourself. I don't recommend that you do either. - Findlaw (2008)
How much does a search cost?
Our fees for patentability searches can be found here.
For our other searches, there are many variables relating to the difficulty and scope of each search. Hence, we cannot provide a menu of search rates.
We deliver cost-effective searches. For the price of a lay searcher at other U.S. search firms, a patent attorney or patent agent will conduct your search.
We will give you an estimate for work within a specified budget once we have reviewed a search request. We can tailor the time spent and databases accessed for a given patent search to meet your needs and budget.
Please contact us using the form below for pricing information.
Should I use invention promotion companies?
Unethical invention promotion companies are a scourge on inventors. These companies will try to draw in inventors by offering patent search services. Many invention promotion companies provide little or no value to the inventor. They prey on the inventors' desire to bring their products to market. These firms often cite dubious market studies.
The U.S. Patent and Trademark Office warns against invention scams here and here.
The U.S. Federal Trade Commission also warns inventors: Invention Promotion Firms.
Avoid invention promoters until you have done your due diligence.