How to check if an idea is new – Patent Search!
Before seeking patent protection it is worthwhile to check if your idea is in fact new. At first instance, it is useful to conduct a general Google search. You may also like to search Google Patents or Google scholar. However, simply because your idea does not appear to be disclosed on Google does not mean it is new.
The next level of complexity is conducting a search of some of the patent databases such as the Australian Patent Office Database, the US Patent Database and the European Patent Office Database. We generally recommend starting with the European Patent Office Database as this typically the easiest to use. Searching can be conducted by keyword searching such as “foldable box” or, as is the preference of the patent office, by classification. Searching by classification is far more complex and should be conducted by an experienced Patent Attorney or Patent Searcher.
As you may appreciate from the above, patent searching is quite complex and because there are so many places to search – no one can ever fully guarantee your idea is in fact new.
One way of gaining a reliable search result is to file a provisional patent application and have the Australian Patent Office conduct a preliminary search (called an International-Type Search). This will provide you with a clear indication from the Australian Patent Office whether or not your idea is new and likely to be considered patentable. It is also worth keeping in mind that potential investors or business associates may place more weight on a search by the Patent Office to provide confidence that potential future patent rights may be granted.
Novelty Patent Searching
Novelty searching is the more formal term used in the industry for checking if an idea is new. There are different levels of complexity of novelty searching that can be conducted. The simplest novelty searches are usually keyword based (i.e “solar panel bracket”).
However, a comprehensive novelty search should be based on a carefully designed patent search strategy which is based on the patent technological classification (i.e. B65G53/04). This type of classification searching is similar to how the Australian Patent Office conducts searches when your patent application is examined.
A novelty search cannot guarantee that your patent will be considered novel. However, having a professional patent search conducted will certainly reduce the risk and assist to provide a base of relevant information from which to focus the patent application.
Clearance Patent Searching
A clearance search (also known as an “infringement search”) is a search conducted to check whether your product or process infringes a third parties intellectual property rights including patents and designs. Usually, clearance searching is conducted on a jurisdiction basis (i.e for select countries) as the primary concern is generally active/granted patents in a country in which you intend to make, offer for sale or sell your product.
A clearance search cannot fully guarantee that your product or process will not infringe a third parties intellectual property rights. However, having a professional patent search conducted will certainly reduce the risk and may also provide you with valuable information as to relevant technology and/or competitor information.
A common misconception is that if you have your own patent or design – you will not infringe any third party rights. However, this is not the case – and, for example, a product subject of a granted patent – can still infringe an earlier filed and granted patent which has claims that include in scope your product.
Accordingly, whether or not you or your business chooses to seek it own patent or design rights, you may still infringe a third party patent right.
If you are unsure, please contact Caska IP and we can let you know where you stand.
