I frequently am told by inventors that they have searched the marketplace and cannot find anything like their invention. I am also frequently told that they have done a patent search and cannot find anything that remotely resembles what they have come up with. While there are many reasons for not finding prior art, just because you do not find prior art does not mean that there is no prior art that needs to be considered. In fact, it would be extremely rare (if not completely impossible) for there to be an invention that does not have any relevant prior art.

Prior art is probably best understood as information that can be used by the patent examiner to reject claims in a patent application. This information is most commonly prior publications, such as technical articles, issued patents or published patent applications. It is also possible for prior art to consist of actions, such as a sale more than 12 months prior to a patent application being filed, or public use more than 12 months prior to a patent application being file. For more on this see What is Prior Art?

It is absolutely critical to understand that a reference, such as an article or patent, does not need to be identical to an invention in order for the reference to qualify as prior art. A reference can be used as prior art for whatever the reference explains. What this means is that if you design an original 5-wheel transportation device you are going to have to distinguish all other wheeled transportation devices, regardless of whether they are identical. The key is to understand that anything similar or in any way related to what you have created is going to be prior art if it existed prior to your invention or more than 12 months prior to the time you file a U.S. patent application.

Generally speaking, in order to obtain a patent an invention must be both new (i.e., never before done) and it must not be obvious (i.e., not a trivial combination of things already known to exist in the prior art). Most inventors are able to satisfy themselves that what they have created is not identical to what has come before, but the question about what is obvious is elusive. It is indeed difficult even for patent attorneys, and apparently also difficult for patent examiners. Everyone knows about crazy inventions that have been patented, and even after the U.S. Supreme Court expanded the definition of what is obvious to include those things that are considered “common sense” the Patent Office continues to issue patents on “inventions” that certainly seem to be well within the common sense of virtually anyone. All of this can make it quite difficult to determine whether an invention will be perceived to be obvious, which is the real, substantial hurdle any inventor faces on the road to obtaining a patent.

It is important to understand that in order to obtain a patent it is not enough that an invention be new and/or different when compared to what already exists, but rather it must also be a non-trivial combination, which means that one of skill in the art would not have thought to make the invention prior to seeing it described. In other words, it cannot be considered to be a common sense variation. Therefore, if you are tempted to think or believe that there is no prior art for your invention think again! In all but the most revolutionary of inventions there will be components and structures that are similar to the components and structures of what has been newly created. Similarly, for practically every invention there already exists one or more solutions to accomplish the same or similar task. All of those devices and methods that purport to accomplish the same or similar task are going to be prior art, even if they are clearly inferior.

What you need to do is focus on what is unique and ask whether that point of novelty is enough to warrant a patent.

To learn how to conduct your own patent search see Patent Searching 101.