IP Firm of the Year 2010 Irish & European Patent and Trade Mark Attorneys
Prior Art/Clearance Searching
19 September 2006Tomkins & Co.
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An awareness of all the relevant information to be found in the public domain is an important consideration in both patent development and product/process commercialization.
When an organization wishes to develop a technology with the aim of achieving patent protection, one of the very first questions to be asked is "what similar technology is already out there?" An innovation needs to meet certain criteria before it can be granted a patent, and the very first requirement is that it is novel. Novel, in the sense that there is no pre-existing material in the public domain that covers the subject matter of the desired patent. This pre-existing material, or prior art, can take any form - including but not limited to publications, marketed products, or other patents. Searching the prior art in this context is known as a novelty search. The results of novelty searches can impact greatly upon the decision to commit resources to refining a technology and applying for a patent. TOMKINS provide such information as one of their core services.
Searching the prior art can also be useful in the event of a firm being accused of patent infringement. One of the standard ways of defending against a claim for infringement is to make a counter-claim for invalidity of the patent in question. In turn, one of the standard ways of asserting that this patent is invalid is by demonstrating that there is prior art predating the patent which proves that the patent is not novel and thus is not valid. Such a prior art search - known as a validity search - is also an area in which TOMKINS has significant experience.
Knowing the state of play in the marketplace is equally relevant if a firm wishes to promote a new product, process or service - regardless of whether or not they are seeking patent protection. The main consideration in this instance is the potential infringement of third party IP rights. In other words, a business needs to be sure that in bringing a new product, process or service to market they are not likely to infringe the patents belonging to others. When conducted at an early stage, clearance searching as it is known, is a very useful tool that allows informed decision making because it identifies potential conflicts further down the road. It is a process that is equally important when developing a new brand or logo (see the "Clearance Searching" link under Trademarks). TOMKINS have considerable practice in this area.
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