Prior art is any evidence that your invention is already known. Prior art does not need to exist physically 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 your invention.
A prehistoric cave painting can be prior art. A piece of technology that is centuries old can be prior art. A previously described idea that cannot possibly work can be prior art. Anything can be prior art.
Prior Art Patent Search for Software Patentability
Conducting a patentability search of the prior art available in the public domain is advisable before filing the software patent application. The software patent strategy includes the steps of reviewing non-patent literature documents like journal, newspaper articles, magazine articles, books, conference materials, brochures, and research reports.
The online patent database (collection of granted patents and pending published patent applications available in public domain by the patent office) of USPTO, WIPO, EPO and the like should be searched to determine novelty of your software innovation. This can be done either by looking for keywords in the abstract text, specification, patent title, patent claims and by the International patent classification numbers, USPC and CPC assigned to each patent by the patent examiner.
Patentability Search Results / Patentability Opinion
The patentability search results of the invention will provide detailed insight to the inventor about how broadly one can claim the invention. Moreover, the patent language used by other patent attorneys to claim a similar invention provides a rough roadmap to describe your own software innovation.
Advantage of Patentability Search
The main advantage of patentability search from the viewpoint of developing a strong patent claim strategy is that the identified close prior art patent claims should be avoided. Particularly, the patent claims should be written in a manner to avoid the prior art.
Examples of Prior Art
What types of disclosures could be considered as “prior art?” Any publication such as a brochure, a magazine article, a published patent or patent application, advertising, a web page, a college thesis, or instructions that accompany a product may be considered a prior art disclosure depending on the circumstances. The text of the publication may be in any language. The disclosure can be no language at all, just pictures. The publication can be located in any country of the world.
What types of events could be considered as “prior art?” A public showing of a product, a public or private offer for sale, a sale of a product, prior invention by another, a prior filed patent application, public use or commercial use of a product, or public knowledge of the invention are all examples of events that could be considered “prior art” depending on the circumstances.
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