Prior Art

Any information showing that an invention is already known is collectively known as prior art (it may also be called state-of-the-art or background art). This does not always refer to physical evidence, it can be a description of the invention such as an academic paper, brochure or a published patent application or granted patent also be counted as prior art. 

Used to determine the patentability of an invention, this information helps to determine whether the invention in question is truly novel, inventive and non-obvious. 

The Importance Of Prior Art

Prior art is more clearly defined as prior information. As novelty or genuine inventiveness is a key criterion to be met in patent applications, a check for prior information regarding the invention is essential. 

Should a search for prior art show similar or the same concepts, inventions or ideas exist already in the public domain, a new patent claim may be said to lack novelty. You cannot claim valid patent protection for an idea that is already publicly known or available. 

How Prior Art Is Considered In Relation To Patent Applications

As per Australian patent legislation, prior art may be used by examiners to raise objections to the inventiveness claims. The prior art permissible to be used includes either:

  • A single piece of prior art information; or
  • Any number of combined prior art information pieces deemed reasonably to have been found by a skilled person before the priority date of the relevant claim.

Detailed novelty searching prior to filing a patent application can assist in ensuring your invention is novel. The patent office will perform their own searches during examination or if you request an International Type Search in relation to a provisional patent application. While you are not required to undertake any searching before filing a patent application it is recommended.

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