Patent and Invention Help Forum

Is the date of prior art being considered to determine novelty?

iper

Is the date of prior art being considered to determine novelty?
« on: January 16, 2021, 05:45:20 AM »
Hello!

Let's say I apply for a patent on January 2020.
The examination takes place on June 2020 and reveals that a published prior art exists and it was published on March 2020.

Would that mean that I can still patent my invention given that my filing was earlier than the publication of the prior art found?

Or since a prior art has been found, and regardless of its publication date, I will not be able to patent my invention?

Thanks!

Brad

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Re: Is the date of prior art being considered to determine novelty?
« Reply #1 on: January 16, 2021, 08:54:50 AM »
The patent application that published in March 2020 was filed before that so the examiner will look at the filing date which was before yours.
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iper

Re: Is the date of prior art being considered to determine novelty?
« Reply #2 on: January 16, 2021, 09:41:12 AM »
The patent application that published in March 2020 was filed before that so the examiner will look at the filing date which was before yours.

Oh I see, thanks but does it make a difference if the found art is also mine?
Can I cancel the application that was published in March 2020 and would that make its addition to prior art at the point of its publication or at the point of its filing by me?

Brad

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Re: Is the date of prior art being considered to determine novelty?
« Reply #3 on: January 16, 2021, 11:30:00 AM »

Oh I see, thanks but does it make a difference if the found art is also mine?
Can I cancel the application that was published in March 2020 and would that make its addition to prior art at the point of its publication or at the point of its filing by me?


That makes it more complicated and you would have to carefully consider the law but in general if the publication was after your filing date or within 12 months of your filing date you may be okay.  https://www.law.cornell.edu/uscode/text/35/102
My free patent template: https://patentfile.org/free-provisional-patent-template/

Hire Me:  https://patentfile.org/packages/

Disclaimer: The information on this site is not legal advice and is not a substitute for an attorney or a law firm.  You should seek legal counsel for legal questions.

 

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