Is the Existing Body of Knowledge Available to a Person of Ordinary Skill in the Art
 | 43 (6) (1991), p. 45. JOM is a publication of The Minerals, Metals & Materials Society |
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Considering What Constitutes Prior Fine art in the United states of america
Walter J. Blenko, Jr.In analyzing an existing patent or in deciding whether to file a patent application for an invention, it is almost always necessary to consider the "prior art." Prior art may be divers very broadly as the entire body of knowledge from the offset of fourth dimension to the present. For example, in a U.South. Supreme Courtroom instance more than l years ago, the work of Benvenuto Cellini, the noted Italian creative person who died in 1571, was cited in the judicial opinion as part of the prior art, invalidating a patent for the lost-wax casting of jewelry. That case was an extreme 1, however, and does not give a fair indication of how prior art is considered.
Under U.S. patent laws, defining what prior art is pertinent is often critical. The patent statutes define what constitutes prior fine art for purposes of anticipating an invention or the claims of a patent awarding or patent. Unless the alleged prior art can be brought within 1 of the definitions set forth in the statutes, it is not pertinent and will not be considered.
It is interesting to note that no i has developed a satisfactory statement of what constitutes an invention. Philosophically, this seems to follow from the fact that an invention is something which is found by reaching out into the unknown. Since an invention cannot be divers by describing something which is even so unknown, the just alternative is to state what is non an invention. This is done in the patent law by defining what is in the prior art.
The prior art is divers by Championship 35, The states Code, Section 102, which states: "A person shall be entitled to a patent unless...." This language is followed past a series of definitions, the most important of which are summarized in the post-obit.
Kickoff, a person is non entitled to a patent if the invention was "known or used by others in this land, or was patented or described in a printed publication in this or a foreign country" before the date of invention by the bidder for the patent. If, for example, an invention is known or is beingness used by someone in the United States, some other person who makes the same invention at a after date may not obtain a patent. Prior cognition or employ in a dissimilar country, all the same, is non a bar to a patent application in the United States. In contrast, a prior patent or a printed publication anywhere in the world will bar an bidder for patent in the United States if it appeared before the date of the applicant's invention.
2nd, a patent is barred if "the invention was patented or described in a printed publication in this or a foreign state or in public use or on sale in this country, more than one year prior to the date of the awarding for patent in the U.s.." This definition of prior art is like to the first with one important distinction. In the first circumstance, the consequence is whether the prior art was in existence before the date of invention. In the second circumstance, the issue is whether the prior art was in existence more than one twelvemonth before the patent application was filed. There take been many cases in which an inventor has delayed in filing a patent application and has discovered, to his or her dismay, that the patent is barred because some other person put the invention into public use or described the invention in a printed publication afterwards the patent applicant'southward invention but more than one year prior to the filing date of the patent application. This department too requires the inventor to file a patent application within one year of his or her publication, public apply or marketing of an invention. Here too, if more than one year passes, a patent application is barred. Also in this section, a patent document or printed publication anywhere in the earth is prior art, whereas public use or placing the invention on sale has an effect just if it occurs inside the United States. The critical point is that if the outcome is more 1 year before the filing date, the patent application is barred. In that location is no grace period. If a patent application is filed 1 twelvemonth and i day later the disquisitional event, the application is besides late.
Third, an inventor is barred from obtaining a patent if he or she patents the invention outside of the United States before the appointment of the patent application in the United States, and if the application outside the United States was filed more than 12 months before filing the application in the U.s.. In other words, if an inventor files exterior of the United States and and then files in the United states of america inside a 12-month menstruum, any patent which issues on the non-U.S. application volition not be prior art. However, if the inventor waits more than 12 months, the foreign patent will be prior art. The purpose of the dominion is to require reasonable diligence in filing patent applications in different countries and to forestall a stringing out of the patenting process from ane country to some other.
At that place are several other bars to patentability that are important but are not, strictly speaking, prior art. Naturally, if an inventor abandons the invention, he or she cannot obtain a patent. Additionally, if A makes an invention, only A can apply for a patent on the invention.
Other specialized rules may prevent an inventor from obtaining a patent because of specific activities which stand equally a prior fine art barrier.
In a fast-irresolute earth, finding a single piece of prior art which discloses the same invention as that claimed in a patent is not the most likely scenario. What is far more than likely to occur is that the prior art will be something similar just non identical to the patented invention. The patent statutes likewise provide for this situation—in a negative manner. Specifically, section 103 of the code provides that a patent may not be obtained "though the invention is not identically disclosed or described [in the prior fine art] if the differences between the subject matter sought to be patented and the prior art are such that the bailiwick affair as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the fine art." The exam which is posed by this department is whether a worker of ordinary skill, knowing the prior fine art, would have found the patented invention obvious.
The rules for determining obviousness are difficult and perplexing for they call upon the courts and the parties to perform the very difficult task of imagining whether it would accept been obvious to foresee an invention which is now known to anybody. In principle, obviousness is determined by comparing one or more pieces of prior fine art with the invention and so analyzing the points of similarity and difference.
Walter J. Blenko, Jr., is a senior partner in the constabulary house Eckert Seamans Cherin & Mellott, 600 Grant Street, 42nd Floor, Pittsburgh, PA 15219; phone (412) 566-6000; fax (412) 566-6099; eastward-mail service ARNIE@TELERAMA.LM.COM.
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