Refers to the Existing Body of Knowledge Available to a Person of Ordinary Skill in the Art
 | 43 (6) (1991), p. 45. JOM is a publication of The Minerals, Metals & Materials Society |
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Considering What Constitutes Prior Art in the Us
Walter J. Blenko, Jr.In analyzing an existing patent or in deciding whether to file a patent application for an invention, information technology is almost always necessary to consider the "prior art." Prior art may exist defined very broadly as the entire torso of knowledge from the beginning of fourth dimension to the present. For example, in a U.S. Supreme Court case more 50 years ago, the work of Benvenuto Cellini, the noted Italian artist who died in 1571, was cited in the judicial opinion as part of the prior fine art, invalidating a patent for the lost-wax casting of jewelry. That instance was an extreme one, withal, and does not give a fair indication of how prior art is considered.
Under U.South. patent laws, defining what prior art is pertinent is oftentimes critical. The patent statutes ascertain what constitutes prior fine art for purposes of anticipating an invention or the claims of a patent application or patent. Unless the declared prior art can exist brought within i of the definitions set up along in the statutes, information technology is not pertinent and volition not be considered.
It is interesting to note that no one has adult a satisfactory argument of what constitutes an invention. Philosophically, this seems to follow from the fact that an invention is something which is plant past reaching out into the unknown. Since an invention cannot exist defined by describing something which is still unknown, the only alternative is to state what is not an invention. This is washed in the patent law by defining what is in the prior art.
The prior fine art is defined by Title 35, United states Lawmaking, Department 102, which states: "A person shall be entitled to a patent unless...." This linguistic communication is followed past a series of definitions, the most important of which are summarized in the following.
Outset, a person is not entitled to a patent if the invention was "known or used by others in this state, or was patented or described in a printed publication in this or a foreign land" earlier the date of invention past the applicant for the patent. If, for example, an invention is known or is existence used by someone in the United States, some other person who makes the same invention at a later date may not obtain a patent. Prior knowledge or use in a different country, however, is not a bar to a patent application in the United states. In contrast, a prior patent or a printed publication anywhere in the world will bar an applicant for patent in the United States if it appeared before the date of the bidder's invention.
Second, a patent is barred if "the invention was patented or described in a printed publication in this or a strange land or in public utilise or on auction in this country, more one year prior to the date of the application for patent in the United States." This definition of prior art is like to the first with 1 of import distinction. In the showtime circumstance, the consequence is whether the prior art was in existence before the date of invention. In the 2d circumstance, the issue is whether the prior art was in existence more than ane year before the patent application was filed. At that place take been many cases in which an inventor has delayed in filing a patent application and has discovered, to his or her dismay, that the patent is barred because another person put the invention into public utilize or described the invention in a printed publication later on the patent applicant's invention but more than one year prior to the filing date of the patent awarding. This section also requires the inventor to file a patent awarding within one twelvemonth of his or her publication, public use or marketing of an invention. Hither also, if more than than one yr passes, a patent awarding is barred. Also in this department, a patent document or printed publication anywhere in the world is prior art, whereas public use or placing the invention on sale has an effect only if it occurs inside the U.s.a.. The critical indicate is that if the issue is more than than i year before the filing date, the patent application is barred. There is no grace menstruation. If a patent awarding is filed one year and one twenty-four hours after the disquisitional event, the application is too late.
Third, an inventor is barred from obtaining a patent if he or she patents the invention outside of the Us before the appointment of the patent awarding in the United States, and if the awarding outside the United states was filed more than 12 months earlier filing the awarding in the United states. In other words, if an inventor files outside of the United States and then files in the United states of america within a 12-month flow, any patent which issues on the non-U.Southward. application will non be prior fine art. Yet, if the inventor waits more than 12 months, the foreign patent volition be prior art. The purpose of the dominion is to crave reasonable diligence in filing patent applications in unlike countries and to prevent a stringing out of the patenting procedure from one country to another.
At that place are several other confined to patentability that are of import but are not, strictly speaking, prior art. Naturally, if an inventor abandons the invention, he or she cannot obtain a patent. Additionally, if A makes an invention, only A can utilize for a patent on the invention.
Other specialized rules may prevent an inventor from obtaining a patent considering of specific activities which stand as a prior art barrier.
In a fast-changing world, finding a single slice of prior art which discloses the same invention every bit that claimed in a patent is not the well-nigh likely scenario. What is far more likely to occur is that the prior art will be something similar merely non identical to the patented invention. The patent statutes as well provide for this situation—in a negative manner. Specifically, section 103 of the code provides that a patent may not be obtained "though the invention is non identically disclosed or described [in the prior fine art] if the differences between the field of study matter sought to be patented and the prior art are such that the field of study matter as a whole would have been obvious at the fourth dimension the invention was fabricated to a person having ordinary skill in the art." The test which is posed by this section is whether a worker of ordinary skill, knowing the prior art, would have constitute the patented invention obvious.
The rules for determining obviousness are difficult and perplexing for they call upon the courts and the parties to perform the very difficult chore of imagining whether it would have been obvious to foresee an invention which is now known to everyone. In principle, obviousness is determined past comparison i or more than pieces of prior art with the invention and then analyzing the points of similarity and difference.
Walter J. Blenko, Jr., is a senior partner in the law firm Eckert Seamans Cherin & Mellott, 600 Grant Street, 42nd Flooring, Pittsburgh, PA 15219; telephone (412) 566-6000; fax (412) 566-6099; e-post ARNIE@TELERAMA.LM.COM.
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