Patent Search 101: The Basics
These are all great questions to be asking about patent searches and it shows that you're serious about taking your invention idea to the next level.
You might be new to the concept of "patent searches" so let me back up for just a moment.
When you have an idea for a new invention, your first thought might be (maybe should be): "I need to get a patent!"
If you are thinking along those lines, kudos on knowing that protecting your idea is incredibly important.
But it’s crucial to figure out if your idea is actually a new idea versus something a bit too similar to an idea that someone has already thought of.
The evidence that points to your idea not being completely new or unique is known as "prior art" - that is also term new inventors should get acquainted with.
In short, prior art is evidence that your idea does indeed already exist.
So before you apply to get a patent, should you do a patent search?
Let's dig into this issue...
What Is A Patent Search?
Broadly, a patent search is a process undertaken before an inventor submits a patent application in order to uncover information about their idea that is similar to another patent or pending patent.
In other words, patent searches are used to examine existing ideas, publications, patents, and public discussions by navigating patent archives at the Patent Office for prior patents related to your idea or invention.
The documents searched during a patent search may include U.S. and foreign patents, published patent applications, and non-patent literature, such as the web (Google has a patent search feature), product literature, and scientific journals and databases.
Basically, if you want to make money from your idea or invention, you have to make sure you’re the first to the punch.
A patent search helps you identify whether your idea is legally original (new, unique, non-obvious), therefore making it a patentable idea.
To be honest, this definition isn't completely telling. That’s because there are a number of different kinds of patent searches.
Types Of Patent Searches
There are several different types of patent searches. The main distinction between the various patent searches inventors can do is related to the difference between what is patentable vs. what infringes on an existing prior art.
They following are the kinds of patent searches inventors should understand:
1. Novelty Patent Search
A novelty patent search is one of the most commonly needed - it’s essentially a search to see if your idea or invention is actually new and original.
The USPTO requires your invention be new, useful and not obvious; these are the criteria under the novelty search.
In facilitation, prior arts are examined and scrutinized to understand if your idea meets the requirements.
You need to identify the key features in your idea or concept that you believe are novel.
Once you list out what makes your idea novel, the professional conducting the patent search would set out to find those elements or features in existing prior art.
The goal - or hope, at least - is that one or more of the elements you listed as novel won't be found in any prior art.
What you are looking to establish with the novelty patent search is the patentability of your idea. This will quickly inform you if your idea is worth further development.
If something turns up, its back to the drawing board.
2. Validity Patent Search
Also known as “Invalidity Searches”, the Validity Patent Search uncovers the slight chance that the USPTO had issued a patent in error.
One thing to remember here: When you’re looking to patent your idea, you are dealing with actual people.
Everyone from the examiner to the folks working at the USPTO are exposed to the slight chance of human error; validity searches look to catch that low percentage chance by looking for prior art showing the claimed elements you've claimed.
Convincing, concise and clear patent documents or literature need to be identified in the validity/invalidity search.
These are frequently exercised by the existing patent owner, who is looking to enforce the existing patent when another inventor attempts to ascertain the validity of it.
Validity patent searches, or invalidity patent searches, are used as a defense when you are confronted with patent infringement.
3. Clearance Patent Search
A clearance patent search seeks to determine whether or not your idea, invention or proposed patent infringes on an existing patent claim.
An analysis of patent infringement can be conducted when any product or process appears to infringe upon an existing patent.
A determination is made by searching existing patents as well as expired patents and pending patent applications on whether or not a new idea infringes on a pre-existing one, therefore roadblocking it from entering patentability and ever being produced or manufactured.
A clearance search goes by other aliases as well; you may hear it referred to as an Infringement Search, a Freedom-To-Operate Search (FTO), or the Right-To-Use Search.
You Definitely Need To Bother With Patent Searches
Now that you know a little bit about what a patent search is and the different types there are, let’s explore whether or not a patent search is a good next step for you.
There are a number of decisions that weigh on whether or not it’s a good idea to conduct a patent search.
I'll outline some of the advantages as well as the disadvantages, but this is actually objective; what is important or relevant to you, as an inventor, may not be significant to another inventor.
Consideration #1: The first thing to remember is that a patent search costs money! How much does a patent search cost? Well, the best approach is using an outside firm or patent attorney to order the search, and generally it will cost $400- $1000+ per search. Not too much, so good news there.
Consideration #2: If an idea has been patented before, whether successfully patented or pending, you can be rejected by the USPTO. The ‘patentability’ of your idea is brought into question when considering a patent search.
Consideration #3: A patent search can help you find new ideas, or elaborate and build on your current idea or invention. If you look at old patent proposals which are similar to yours, they can help dictate how your patent application should be constructed and drafted - very useful! You can also leverage archived and expired patents to find ideas that you can use to improve yours. If nothing else, the patent search can get some of those gears grinding in your brilliant mind that haven’t been grinding yet. This can also help you decide whether or not you want to proceed with your idea - and if you decide against it, you then have more time to focus on a different idea or invention; less time wasted!
Consideration #4: A patent search conducted on your own, by the inventor, can help you accelerate and speed up the application procedure when it passes through the patent examiner. By simply providing an explanation of how your patent is relative to other patents, you prove that you’ve done the legwork and are often stepped up in the process; and a patent application process can be lengthy, so this could be an advantage.
Consideration #5: Conducting a patent search requires you to take extra care. When you facilitate the search, you will not have access to current pending patent applications - in other words, if the application is not published, you won’t see it. In other words, a patent search is not necessarily a perfect science that gives you perfect results.
Should I Use A Professional Service For Patent Searches?
Inventors and entrepreneurs can ultimately save money by conducting their own patent searches.
It's not a bad idea to conduct your own search as an inventor, especially given the amount of information available to help (Google patent search, Google advanced patent search, and all the artifacts and tutorials found on the USPTO website), but that doesn't always mean going lone-wolf is a great idea.
Professional patent search firms and companies will often turn up information you may not find; this information can save you thousands in cash and a lot of time down the road.
It's not dissimilar from using a professional service for your central air conditioning, as an example. Sure, you may be able to YouTube some videos and attempt to troubleshoot based on "symptoms" your system has, but hiring your local HVAC contractor often results in learning information about certain components of your system that may be deteriorating, for example.
So while you were just going to recharge the freon, the real issue may have been the condenser. But YouTube wouldn't necessarily tell you that if you didn't know exactly how to search.
So yes, there is absolutely value in outsourcing your patent search. The money it saves you upfront to do a patent search on your own can easily be eaten up later on, and then you've not only lost money, but you've wasted time to boot.
Even when you do use a service, its a good idea to facilitate your own patent searching as a concurrent, or even pre-effort.
This helps you get familiar with searches and prior art, and maybe you learn a few things along the way. Also, if you happen to turn something up first, then it's easy to say "This idea has been done" and move onto the next great invention.
A patent search can help some of you inventors greatly. On the other hand, it’s not a perfect art and it’s not for everyone.
I hope this article helped you decide whether or not you should do a patent search now, later or at all. If you’ve already searched your patent and you’re ready to move on, let us help you bring that idea to market.