Looking to register a new patent? If so, chances are you’ve heard of the term called “prior art.” This is the single most common reason why the patent office may reject your application. That’s because it’s easy to use prior art as proof that your invention isn’t new or “non-obvious,” which are the two most essential requirements for patentability.

 

Want to know more about what counts as prior art? Read on to learn about the definition of prior art and the most notable exceptions to this concept.

 

What Is Prior Art?

 

Prior art is the term for any evidence that your invention is already known or available. Contrary to popular opinion, prior art doesn’t have to exist physically or be available commercially. For something to count as prior art, it’s often enough for someone to have described or shown something that contains the use of technology that’s the same as or similar to the elements of your invention.

 

This is a rather broad concept, and it encompasses more than you may think of. For instance, a prehistoric cave painting can be prior art. A centuries-old part of technology may count as prior art. An idea that couldn’t work for one reason or another can be prior art.

 

Of course, the most common form of prior art is an existing product. This is why many inventors make the mistake of assuming their invention is novel if they can’t find any products using it for sale. The truth is, many inventions never become products, but any evidence of them – regardless of the form – will still count as prior art.

 

Prior Art Exceptions

 

The above definition of prior art contains four important exceptions. They are:

 

Secret Patent Applications

 

Under specific circumstances, an abandoned patent application may remain confidential. If so, this would disqualify its disclosure as prior art. One example of this is a provisional patent application that never gets converted to a non-provisional application. Publication typically happens 18 months after filing unless the applicant abandons it over four weeks before its publication.

 

Publications Without Enabling Detail

 

For a patent application to count as prior art, it must offer an “enabling disclosure.” This means that someone with ordinary skill in the field must be able to figure out how to use the invention from the prior disclosure. If you build Iron Man’s suit, for example, the Iron Man comic books can’t be used to deny your patent because they don’t explain how to build the suit.

 

Confidential Disclosures

 

Some technology companies disclose their work to third parties before filing a patent. They may do this to pursue a funding opportunity or gauge market interest. Either way, sharing this information must be done under an obligation of confidentiality, typically through a contractual agreement, and doesn’t count as prior art.

 

Trade Secrets

 

Trade secrets are confidential by nature, so they can’t be evidence of prior art. This is why another company’s trade secret invention can’t be used as prior art against your patent, even if they developed their intention before you developed yours.