Priority Patent Application: How To Ensure you have priority for your patent
“Novelty” in patent law is the concept that your idea or invention is unique. The idea goes hand-in-hand with the concept of “prior art” which is any public disclosure of an idea that predates your invention.
For example, if you have invented a new and improved mousetrap, any pre-existing mousetrap that has ever been sold, advertised, or publicly researched is prior art with respect to your improvements. To establish patent novelty, you must then distinguish your patent from that prior art. Perhaps you have invented a new and improved manufacturing process for your mousetrap? Or maybe your mousetrap incorporates special non-lethal techniques? Your novelty in patent law ultimately becomes a series of claims based on these distinctions.
Prior art therefore dictates patent novelty, but how do we determine if something is prior art?
Not all disclosures are public disclosures, and not all public disclosures predate your invention. In the end, prior is only those public disclosures that predate your idea. This can be far more complicated than it initially seems.
For example, what if you experimented on an idea for 5 years but never tried to sell it, is that a public disclosure? And what if it is, can your own disclosure be prior art against you? And what about the literal trillions of humans that have lived on this Earth? How do you know what may or may not have been disclosed in the past 5,000 years that could be used against you?
Prior Art Search
A “prior art search”, also known as a “patent pending search” or “patent search”, usually includes a search through one or more patent databases to identity the priority patent date of any registered patents or patents pending. Ideally, your invention can be defined and then compared, element by element, against any prior art patent disclosures or the claims of priority patents.
If a patent search establishes that your nonobvious combination of elements is not predated by any priority patent date, then you likely have patent novelty and should have some confidence that the USPTO Examiner will struggle to identify obstacles against your future application when he or she performs their own prior art search.
After you have performed your patent pending search, the next likely step is to draft and then file your own patent application, at which point you become patent pending yourself.
But what does patent pending mean?
In the simplest sense, patent pending means that you filed your own patent application and the application is not yet approved to register.
However, in the broader sense, patent pending means far more, because the moment you become patent pending your application becomes prior art regarding all future disclosures. This means that, just as the USPTO Examiner compares your invention against all prior art, he or she would also compare all future inventions against you. In other words, you become the prior art that could keep your competitors from obtaining their own patents.
Your priority patent date also is valuable from a patent infringement perspective. There is some much nuance and context to patent infringement, but the very first question patent infringement attorneys will ask each other is “who was first?”
Your priority patent date, which is established the moment you become patent pending, is almost always how patent infringement lawyer’s will resolve that question. As a general rule, if you have on your side the priority patent date and patent novelty is clear, your patent infringement attorney will win almost every such lawsuit.
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