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The Art of Prior Art Searching

By Alexander D. Georges and Joseph A. Herndon

Prior to filing a patent application at the United States Patent and Trademark Office (“USPTO”), an applicant seeking patent protection for an invention should consider conducting a prior art search. Also known as a patentability search, a prior art search involves discovering and examining art, such as issued patents, published patent applications, and other published documents, that can affect the potential to obtain a patent on the invention. More exhaustive prior art searches may also include discovering and examining any prior uses or prior sales of technology related to the invention.

Although completing a prior art search is not required for filing a patent application, search results often provide the draftsperson of the patent application with valuable insight regarding the field of the invention. This insight may be used to develop more focused application claims, which may lead to more efficient prosecution of the application. Additionally, conducting a search may save an applicant a considerable amount of time and money if the results show that the invention would likely not satisfy the novelty or obviousness requirements set forth in 35 U.S.C. § 102 and § 103, respectively. Other beneficial reasons exist for performing a prior art search, including the potential to limit the impact of third party challenges by disclosing, during prosecution, art discovered within the prior art search.

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