Prior Art Doesn't Spell Disaster For Your Invention

One of the first steps of the invention process is to determine if your idea is indeed a new one. But I feel like many inventors are a little wary of doing prior art searches, probably because they’d rather not discover the truth and “shatter” their hopes. But finding out that prior art (any patent that has already been approved) that is very similar to your idea doesn’t necessarily spell doom for your invention!

There are several ways to search for prior art. Before the Internet, I would visit several local stores and scan the shelves. If I didn’t see my idea, then I thought that was a pretty good “go”. But with the advent of the Internet, doing a more thorough prior art search is much easier. Every inventor must do so. Use the United States Patent and Trademark Office’s website, USPTO.gov. They show you how to perform a search. You can also search for prior art through “Google patents”.

There are also many legal firms who advertise their prior art search skills. This isn’t necessary. Even if you’re paying them, it’s unlikely they’re going to comb through thousands of patents any more closely than you are. You might be tempted to use one, but think carefully. I had one firm tell me my idea was original, only to have another find prior art that conflicted. The overall message is: you are not going to be able to do a perfect job. What if someone has filed a patent or provisional patent application with similar prior art? There is no way for you to know. So do some research, but don’t obsessively search.

If you do find prior art that is very similar to your idea (or the same), call the inventor whose name is listed on the patent! Don’t give up on your idea immediately. Ask if you can license the prior art for a given amount of time, with the goal of bringing the product to market. Ask why the idea never made it to market. Were they just unsuccessful salesmen? Or is there a problem inherent with the idea you aren’t aware of. These individuals have already spent the money to file the patent – learn from them! Maybe you can even team up.

Do what you can, but don’t let searching for prior art take over your inventing process.

Stephen Key
www.inventright.com

I have an idea which takes someone else's idea and expands on it. Can i use their art in my application to explain the difference between what they have and what i have? Thank you for your time. DrJiM

jam2dc wrote:

I have an idea which takes someone else's idea and expands on it. Can i use their art in my application to explain the difference between what they have and what i have? Thank you for your time. DrJiM

Their art is prior art. It exists and it is not confidential information.

Basically, you can do whatever you want with it, as long as you do not infringe any claim of their patent(s). Technically, you are even free to infringe the claim(s) of their patent(s), but you could run into legal trouble as a result.

In layman's terms, to infringe a patent, usually you must be using, selling, or otherwise practicing or commercializing a patented invention. Simply writing about a patented invention should never run you into any trouble, as long as you are giving credit where it is due and aren't claiming someone else's invention as your own.