Читать книгу Intellectual Property Law for Engineers, Scientists, and Entrepreneurs - Howard B. Rockman - Страница 84

In the U.S. Patent and Trademark Office, and in the courts, the novelty of an invention and thus the validity of a patent application or of an issued patent is tested against the body of prior patents, public inventions‚ and published material known as “prior art,” which basically encompasses everything known throughout the world that took place prior to the filing date of your patent application. Under the U.S. patent examination and legal system, (1) any publication that shows all or part of your invention prior to your patent application filing date is prior art, and (2) any prior publication or patent that was made public or issued more than one year before your patent application filing date is also prior art. In addition, any foreign patents, foreign publications, information in text books or databases, and any other publicly available knowledge about work that was performed relating to your invention becomes prior art for use by the Patent Examiner and the courts in determining the novelty of your invention, and thus the validity of your patent application or patent.

An inventor is charged with “constructive knowledge” of all public prior art that was generated from the beginning of time up until the date of his or her patent application filing date, regarding the subject matter of his or her invention. Although it is impossible for any single inventor to know all of this subject matter, without such constructive knowledge the patent system would not work. As will be explained in Chapter 8, it is possible to obtain a search of literature, patents, and other materials prior to filing a patent application to substantially determine the state of the prior art regarding the subject matter of any invention. Thus, it is possible before the filing of a patent application for an inventor and the inventor’s attorney to obtain a fairly large and detailed amount of information regarding the state of the prior art to which an invention pertains, upon which to base a decision regarding the novelty of your invention.

Upon examination by a Patent Examiner, and later in litigation before the courts, such prior publications, uses‚ and knowledge are used to limit the scope of the claims of a patent application or issued patent to define only that which is novel, and to eliminate those claims which cover the prior art. The claims of a patent are drafted to potentially encompass everything related to the invention which may be devised by others in the future, and yet the same claims, read as a whole, cannot cover any material that has been shown or disclosed in the prior art. Thus, determining the content of the prior art is of the utmost importance in the patenting process. The claims of a patent are its most important content, and are discussed in detail in Chapter 10.