| Learning what a patent search includes and what | | | | invention. This process of determining |
| patentability is, is often the first step in the | | | | patentability involves reviewing and understanding |
| invention and patent process for new inventors. | | | | existing patents as well as non-patented, similar |
| Along with basic market research, I recommend | | | | products (together called “prior art”) to |
| that you consider a patent search prior to moving | | | | determine the unique qualities (“novelty”) |
| forward with filing a provisional or non-provisional | | | | of your invention. A USPTO examiner performs |
| patent application. The last thing you want to do | | | | a “patentability assessment” during the |
| is waste your time and money developing an | | | | patent review process. Some inventors also |
| invention only to find out later that it had already | | | | contract with a Patent Attorney or Agent to |
| been invented and patented. Keep in mind; | | | | conduct a preliminary “patentability |
| patent searching is not an exact science so | | | | opinion” prior to moving forward with a patent |
| you’ll never receive a 100% guarantee that | | | | application. This process does not guarantee that |
| the search found every applicable patent, which is | | | | your patent application will “pass” the |
| an inherent risk in the process. | | | | patent criteria followed by the United States |
| With that said, if you find a product similar to | | | | Patent and Trademark Office, but it could be |
| your invention, but nothing showed up in your | | | | beneficial in the long run. Also, it is important to |
| patent search, I first thing I would advise is that | | | | understand that this process is not an exact |
| you try to find out as much information as | | | | science. A patent attorney will do his or her best |
| possible about the similar item. Is it currently | | | | to find applicable prior art and to make a |
| being sold? Is it patented? I can tell you that | | | | determination, but with the millions of patents that |
| only products with issued patents will show up in | | | | exist today, you will never receive a 100% |
| patent search results. Provisional patents will | | | | guarantee. |
| never show up in a patent search, because | | | | One of the major factors of |
| Provisional patents are NOT available to the public | | | | “patentability”, as discussed above, is to |
| - they are not published, and the USPTO holds | | | | consider what similar inventions are already |
| them confidentially. Also, products that have | | | | patented. For best results, I would recommend |
| non-provisional patents filed, but which have not | | | | that you hire a patent attorney or patent search |
| yet issued, will most times NOT be reflected in a | | | | firm to complete this step. A patent search is |
| patent search. Again, the patent search typically | | | | the process of searching for all previous issued |
| reflects issued patents. I'm sure you know, it is | | | | patents. It may also include a search of foreign |
| not necessary for every product being sold to | | | | patents and printed publications. A patent search |
| have a patent. Products being sold, but which | | | | does not guarantee that your invention is or is |
| are not patented, would not reflect in a patent | | | | not patentable; it is primarily focused on |
| search. We always suggest to inventors that | | | | determining what similar or like invention(s) are |
| they do some amount of due diligence prior to | | | | already patented. Note: most companies that |
| spending any money on a patent search, in hopes | | | | may consider licensing of your invention will inquire |
| of discovering additional info like this up front. | | | | about your patent search results. |
| Without additional research, there’s no way | | | | Lastly, I often am asked if one can modify an |
| to tell when the similar product was conceived, | | | | existing product? Yes. Modifications to existing |
| and whether it’s date or your date came | | | | products are done every day, which drives |
| first. And until your patent ultimately issues, you | | | | product improvements and competition. Many |
| can't yet file "infringement" against anyone. | | | | inventors focus purely on improving existing ideas |
| There are many unanswered questions regarding | | | | and products, and profit from simply modifying |
| the similar product that you found. You may | | | | products that are already on the market. The |
| want to discuss your options with a Patent | | | | only caveat to this strategy is to ensure that you |
| Attorney or Agent. | | | | modify the invention in such a way that it is |
| Let’s discuss the term “Patentability”. | | | | different from what the original patent holder has |
| Patentability refers to the process of determining | | | | claimed. Many times, you can improve an |
| if your invention is eligible to receive a patent. | | | | existing product and receive patent protection on |
| One of the primary considerations of patentability | | | | the “new” product. |
| is whether another patent already exists on your | | | | |