Prior art is any evidence that an invention is already known or in use before the effective filing date of a patent application. It can be in many forms including: printed information, admissions by a patent applicant, for sale offers and public use.
Printed information may include patents and published patent applications (both of US and non-US origin no matter how old they are or if they are expired), magazine and newspaper articles, electronic and online articles, online databases, and websites.
Admissions of prior art include statements by an applicant that certain information was prior art, such as in the drawings, background section or other section of their application, or in remarks made during examination of their application.
For sale offers can include any manner of offering a product as being for sale – even if no one has purchased it. Similarly, public use can include any manner of an invention being used or demonstrated in public.
Additionally, prior art may include information that is “Otherwise available to the public”. Examples provided by the US Patent Office include: an oral presentation at a scientific meeting; a demonstration at a trade show; a lecture or speech; a statement made on a radio talk show; and a YouTube video, Facebook video, etc.
Generally, if a patent examiner can find one or more instances of prior art that, alone or in combination, have all the features of your invention, then they can make a prima facie case that your invention is
unpatentable based on either anticipation (a 35 USC §102 rejection) or obviousness (a 35 USC §103 rejection).
In the next article we will give an overview of anticipation and obviousness rejections.