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Johan Aerts

Did you know it’s a best practice to do a novelty search before drafting a patent application?

it’s a best practice to do a novelty search before drafting a patent application

Did you know that you can increase the chance of success of obtaining a strong patent by doing a novelty search before drafting a patent application?

Indeed, to be eligible for patent protection, an invention needs to be new and inventive. An invention is novel if it has not been known to the public in any way before filing a patent application. It is considered inventive if, having regard to the state of the art (i.e. what is publicly known), it is not obvious to the person skilled in the art and provides a technical effect.

To aid in judging whether your invention is patentable, it is beneficial to perform a novelty search before drafting a patent application. The goal of the search is to find documents, mostly published patents or patent applications, that describe technology relating to your invention. Such documents give good insights into what features distinguish your invention, and these distinguishable features can be well described in the patent application together with their technical effects. This is important, especially during prosecution, as you might need to bring forward distinguishable features in the claims of the patent application to determine the scope of protection. This can, however, only be done on the basis of what is actually described in the patent application. In turn, overlooking an important distinguishing feature could, – be the difference between obtaining or not obtaining a patent.

Knowing the state of the art also gives you a good idea of the scope of protection that might be expected from a patent. In the best case scenario, no relevant documents turn up in the novelty search and, therefore, you can aim for a broad protection with a patent. On the other hand, the novelty search may also turn up a document that comes very close to your invention and, as a result, only a very narrow scope of protection can be expected. This may cause you to decide to forgo the considerable investment of obtaining patent protection.

Like most things in life, it is best to be well prepared before starting a patent application.

Gevers can gladly assist you with novelty searches.

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