2.3 What is prior art

Novelty is essential in IP. Prior art is any information (art) that may show that the perceived novelty in potential IP does not actually exist, where that information was publicly available prior to an application for legal protection of the potential IP.

Novelty (and therefore IP) does not exist if, at the time of application for legal IP protection, anyone else has already made public anywhere, a creation with the same properties that were thought to be novel. Application for legal IP protection will be rejected, and any protection already granted may be revoked. Information not publicly available (e.g. secrets, private conversations and correspondence, information covered by confidentiality agreements, etc) is not prior art.

Prior art novelty search

Before applying for IP protection, a creator should conduct a prior art novelty search, including as much relevant information as possible, especially the publications, internet postings, etc, of the creator’s own R&D group.

Relevant prior art may date back many decades and exist in obscure documents anywhere in the world. It’s impossible to check it all, so it’s impossible to be certain that novelty exists. Conversely and importantly, a prior art search can provide certainty that novelty does not exist; in which case applying for IP protection would be a waste of time and money. For these reasons, prior art novelty searches are essential and should be done early and diligently.

Prior art inventiveness search

For a patent to be granted, the creation must not only be novel but also inventive, so the prior art search must consider the perceived inventiveness of the creation as well as its novelty. Patent examiners may combine several prior art articles in order to reject a patent application on the basis that it lacks inventiveness. This is the most common reason for patent rejections.