Prior art

Prior art (also known as state of the art^[1] or background art^[2]) is a concept in patent law used to determine the patentability of an invention, in particular whether an invention meets the novelty and the inventive step or non-obviousness criteria for patentability. In most systems of patent law,^[3] prior art is generally defined as anything that is made available, or disclosed, to the public that might be relevant to a patent's claim before the effective filing date of a patent application for an invention. However, notable differences exist in how prior art is specifically defined under different national, regional, and international patent systems.^[4]^[5]^[6]

The prior art is evaluated by patent offices as part of the patent granting process in what is called "substantive examination" of a patent application in order to determine whether an invention claimed in the patent application meets the novelty and inventive step or non-obviousness criteria for patentability. It may also be considered by patent offices or courts in opposition or invalidity proceedings. Patents disclose to society how an invention is practiced, in return for the right (during a limited term) to exclude others from manufacturing, selling, offering for sale or using the patented invention without the patentee's permission.

Patent offices deal with prior art searches in the context of the patent granting procedure. A patent search is frequently carried out by patent offices or patent applicants in order to identify relevant prior art.^[7]^[8] Certain patent offices may also rely on the patent search results of other patent offices or cooperate with other patent offices in order to identify relevant prior art.^[9] Prior art may also be submitted by the public for consideration in examination or in opposition or invalidity proceedings. Relevant prior art identified by patent offices or patent applicants are often cited by patent applicants in patent applications and by patent offices in patent search reports.^[10]

^ Sreenivasulu, N. S.; Raju, C. B. (2008). Biotechnology and Patent Law: Patenting Living Beings. Manupatra. p. 95. ISBN 9788189542313. The European Patent Convention uses the term 'state of the art' which is equivalent to prior art (...)
^ "The expression 'background art' ... must have the same meaning as the more familiar expression 'prior art'" in EPO Board of appeal decision T 11/82 of 15 April 1983, Headnote II and Reasons 15. See also Rule 42(1)(b) and(c) EPC (previously Rule 27(1)(b) and (c) EPC 1973, where the term is used).
^ See for example Article 54(2) EPC and 35 U.S.C. § 102
^ "Regulations under the PCT: Rule 33 Relevant Prior Art for the International Search". WIPO. Retrieved 29 December 2021.
^ "Certain aspects of National/Regional Patent Laws" (PDF). WIPO. October 2021. Retrieved 29 December 2021.
^ "Regulations under the PCT: Rule 64 Prior Art for International Preliminary Examination". WIPO. Retrieved 29 December 2021.
^ "Finding Technology Using Patents - An Introduction" (PDF). WIPO. 2015. Retrieved 29 December 2021.
^ "WIPO Guide to Using Patent Information" (PDF). WIPO. 2015. Retrieved 29 December 2021.
^ "Alternatives in Patent Search and Examination" (PDF). WIPO. 2014. Retrieved 29 December 2021.
^ "Handbook on Industrial Property Information and Documentation: Standard St.14 Recommendation For The Inclusion Of References Cited In Patent Documents" (PDF). WIPO. March 2016. Retrieved 29 December 2021.

[1] Sreenivasulu, N. S.; Raju, C. B. (2008). Biotechnology and Patent Law: Patenting Living Beings. Manupatra. p. 95. ISBN 9788189542313. The European Patent Convention uses the term 'state of the art' which is equivalent to prior art (...)

[2] "The expression 'background art' ... must have the same meaning as the more familiar expression 'prior art'" in EPO Board of appeal decision T 11/82 of 15 April 1983, Headnote II and Reasons 15. See also Rule 42(1)(b) and(c) EPC (previously Rule 27(1)(b) and (c) EPC 1973, where the term is used).

[3] See for example Article 54(2) EPC and 35 U.S.C. § 102

[4] "Regulations under the PCT: Rule 33 Relevant Prior Art for the International Search". WIPO. Retrieved 29 December 2021.

[5] "Certain aspects of National/Regional Patent Laws" (PDF). WIPO. October 2021. Retrieved 29 December 2021.

[6] "Regulations under the PCT: Rule 64 Prior Art for International Preliminary Examination". WIPO. Retrieved 29 December 2021.

[:0-7] "Finding Technology Using Patents - An Introduction" (PDF). WIPO. 2015. Retrieved 29 December 2021.

[:1-8] "WIPO Guide to Using Patent Information" (PDF). WIPO. 2015. Retrieved 29 December 2021.

[:2-9] "Alternatives in Patent Search and Examination" (PDF). WIPO. 2014. Retrieved 29 December 2021.

[:3-10] "Handbook on Industrial Property Information and Documentation: Standard St.14 Recommendation For The Inclusion Of References Cited In Patent Documents" (PDF). WIPO. March 2016. Retrieved 29 December 2021.

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