What is Prior Art?

Prior art in the context of patent searches is any publicly-available evidence that the invention was already known at any earlier time. Prior art does not need to be a physical product or be commercially available. It is enough that someone, somewhere, sometime previously has described or shown or made something that contains a use of technology that is very similar to the invention.

Types of Prior Art Searches

Pre-filing/Patentability Search

Identifies boundaries of the invention claimed and often opens up new opportunities to expand the boundaries of the claimed invention or fortify the specification to distinguish the invention from art that may be deemed close

Freedom-to-Operate (FTO)/Clearance Search

  • Identifies third party patent claims that can potentially impact commercial production, marketing and use of a new product, process or service
  • A business entity may use the FTO search to understand the risk of infringement proceedings being brought against them if they make/sell a product
  • An FTO primarily focuses on the claims of patents in-force in the jurisdiction where the manufacture or sale of products/processes will take place

Invalidation/Validity Search

A validity search is conducted for art that was known as of the filing date (or priority date) of a granted patent with a view to confirm/challenge its patentability

Landscape Search

A landscape analysis provides a high-level view of the technology space

  • Landscapes searches are normally performed to understand the lay of the land when entering a new technological area
  • Landscape analyses include recent trends in technology, competitors, filing activity, and white-space/adjacent technologies

Why perform a Prior Art Search?

A patent is a government-awarded monopoly to protect intellectual property that was developed with considerable investment of manpower, money and time. The prior art searches help uncover what is known and can be used to justify or challenge the monopoly granted to an entity for their invention. Depending on the party conducting the search and the stage of the invention’s lifecycle, the prior art search may have any of the following objectives: