No one would want to complete the process of applying for a patent only to find out that it has already been claimed.
There generally are two types of inventors: the individual inventor/small company and the large, corporate research and development (R&D) groups.
R&D groups generally have a significant advantage over smaller entities because they are well-connected in the intellectual property community and they have ample capital.
Individual inventors have to function with fewer resources and a smaller network of colleagues.
The good news for the individual inventor is that they can “level the playing field” with the use of a professional patent search.
There are dozens of companies that are dedicated to performing exhaustive patent searches for individual investors and small businesses. Because a searcher has access to the same proprietary databases as the US Patent and Trademark Office (USPTO), he or she can notify inventors of any previous iterations of the invention-otherwise known as prior art. Something is considered prior art if it consists of other patents, applications, or publications that have been published and are “out there” already.
A patent search adds an additional expense to the process, but it is one that is well worth it.
Evaluating a patent searcher’s report offers a glimpse into the mind of the USPTO and what a Patent Examiner is going to consider when reviewing an application. This level of insight can be invaluable given that most patent applications are denied the first time they are filed and you can know what the overall “patent landscape” looks like when drafting and prosecuting a patent application.
“Prosecuting a patent” is the term given to the sometimes long and arduous back-and-forth process between the inventor and the USPTO regarding what should be protected, how the invention is different from prior art, and the breadth of protection that should be granted. As the name implies, prosecuting a patent is a semi-adversarial process.
Boiled down to basics, prosecuting a patent often involves examining the components of an invention and asserting the uniqueness of one or more of those components. For instance, if an existing product is composed of components A + B + C, an inventor may successfully prosecute a patent using the components A2 + B + C. In other words, it is prudent to methodically develop the new, innovative variations applied to an established patent (A2 in this example).
Investing in a patent search helps inventors identify any potential problems they may encounter during the prosecution of a patent. Once the weakness is known, we can begin to focus on the solution, whether it be changing a component of the invention or using different language in the drafting process. It’s always good to know what is out there and what the possibilities are, and a search can provide that understanding.
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