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How to Search for Patentability

Written by: Karen Dana Oster

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Posted over 3 years ago. 0 helpful votes, 0 comments

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Visit The USPTO Website

http://www.uspto.gov/patft/index.html - The issued patents are on the left and the published applications are on the right. Issued patents and published applications are held in separate databases and must be searched separately. You may search using quick, advanced, and patent number search engines.

Searching “Up and Down”

Once you have found a "relevant reference," search for additional references that have been cited by the relevant reference AND for additional references that refer to (are "referenced by") the relevant reference. When you access recent patents online, the "references cited" are listed and linked directly thereto. There is also a “referenced by” link.

Searching By Classification

Search by Current U.S. Classification Class/Subclass (you can access older issued patents). You can find the Class and Subclass by finding a similar relevant patent reference or by using the U.S. Manual of Classification (http://www.uspto.gov/web/patents/classification/). This is important because full text searches may only be done on patents that issued since 1976 and on applications published since 2001. Patents issued between 1790 and 1975 may only be accessed using the patent number and the current U.S. patent classification, but the full-page images of these patents are available.

Further Patent Searching

For particularly relevant references, search for other patents/publications by the same inventor, assigned to the same assignee, or having the same title. You can also check the continuity data of issued patents at http://portal.uspto.gov/external/portal/pair.

Search the Web and Other Sources

Some foreign patent references may be obtained from http://www.uspto.gov/web/menu/other.html and http://www.epo.co.at/espacenet/info/access.htm. For purposes of "patentability," all references are relevant. Search the web. Read trade publications. Visit stores and competitors' places of business.

Search Agents

This search is performed in Washington, D.C. at the U.S. Patent Office where patents are arranged according to their fields of technology.

Patentability v. Infringement

Remember that there is a distinction between patentability (at least one patent or non-patent reference has all of the elements of the invention you hope to patent) and infringement (your product or process has all the elements of at least one independent claim of an enforceable issued patent). As a simplistic rule of thumb, a patent is not enforceable if it is more than 20 years old, if maintenance fees have not been paid (check the status at http://portal.uspto.gov/external/portal/pair), if there has been inequitable conduct in obtaining the patent, and/or if there is prior art that would invalidate the patent.

No Search Is Perfect

No matter how much you spend on a search or how much time you spend on a search, your search may still be incomplete. Remember, some patent applications are not available at all. Some references are used in public in a very limited capacity and may not be findable, but could be discovered during litigation.