Prior Art
According to the US patent laws, “prior art” means the state of
knowledge existing or publicly available either before the date of your
invention or more than one year prior to your earliest patent
application date.
This prior art knowledge applies to any printed publication, written by
anyone at all in any location on the planet in any language if it was
published before you invented the item in question. This includes US
patents, foreign patent applications, books, magazines, including trade
journals, and any publicly available technical papers and abstracts.
Even comic books count.
The One Year Rule
US patent law says that you must file a patent application within one
year after you sell, offer for sale, or commercially or publicly use or
describe you invention idea. Failing to do so will prevent you from
getting a patent. You therefore need to be very careful about public
disclosure of your idea. Public disclosure does not have to be a printed
document; even just using your invention in public can be considered
public disclosure. Demonstrating your great new idea at a private party
would even be considered public disclosure, so watch out!
There are some exceptions. For instance, if you invented a new accessory
for cars that mounts on the bumper, you could mount it on the bumper of
your car for testing purposes and as long as you took good records and
could prove in a court of law that it was just for testing you could
probably get away with it.
The Novelty Test
One of the criteria that your invention must meet is the novelty test.
Your invention must be physically different in some way that
differentiates it from other related prior developments available to the
public anywhere.
In patent law terms those prior developments and concepts are grouped
together under the term “prior art”.
Establish a Date of Inception
Since the date of your invention is what determines in part what the
prior art is, it is very important that you firmly establish the date of
your invention. The public knowledge before that date is what will be
prior art.
The US patent office considers who ever is first to invent something the
valid inventor, not who files his application first like most of the
rest of the world.
If you have no documentation the filing date will be used as your date
of inception. If you have good documentation with proof of the date you
conceived of your invention idea then that is the date that will be used
as long as you followed the rules, like not publicly disclosing your
idea more than one year before filing the application, or going for a
year or more without working on it etc.
One method to establish the invention date is to describe your invention
in detail with drawings and all pertinent information and have it signed
and dated by two witnesses who state on the document that they
understand your invention. The witnesses should of course be reputable.
If someone files a patent earlier than the date you have for conceiving
your idea then the patent application by the other person is considered
valid prior art.
The important things to remember are:
Establish a date of inception of your idea with evidence that will hold
up in a court of law such as signed statements from witnesses who can be
called to testify in a court of law.
If your filing date for your patent application is more than one year
after your date of inception be able to prove that you did not “abandon”
your invention for more than one year, i.e. be able to show that you
have never let more than a year go by without actually doing some kind
of work on it.
Do not publicly disclose your idea more than one year before your
application filing date which would include any publication of
documents, disclosure at public events, offer to sell, or public use of
the invention etc.
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