Patent and Invention Help Forum

Patent and Inventing Discussion => Patent Questions and Advice => Topic started by: iper on January 16, 2021, 05:45:20 AM

Title: Is the date of prior art being considered to determine novelty?
Post by: iper 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!
Title: Re: Is the date of prior art being considered to determine novelty?
Post by: Brad 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.
Title: Re: Is the date of prior art being considered to determine novelty?
Post by: iper 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?
Title: Re: Is the date of prior art being considered to determine novelty?
Post by: Brad 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
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