Was the patent sufficiently novel and nonobvious/inventive at the time it was first filed?
A Patent Invalidity Search, Patent Validity Search, or an Opposition Search is a prior art search designed to uncover pertinent prior art documents that can challenge the relevancy of a patent’s claims.
A validity search can be desired in diverse situations
- If a product is accused or feared of infringing any active patent claims, then an invalidation of the asserted patent claims can be instrumental as a defensive mechanism to confront the infringement attack.
- Evaluation of a patent’s strength before considering it for licensing in or licensing out can substantially contribute to robust negotiation stands.
- Pre-grant Opposition / Third party submission / Third party Observation (Europe)
- Post-grant Review (PGR) / Post Grant Opposition
- Inter partes Review (IPR)
- Covered Business Methods (CBM) review
Questions that a validity search can answer
- Were all the pertinent prior art disclosed to the examiner or were they found by the examiner for adequate examination of the patent?
- Was the patent sufficiently novel and non-obvious (inventive) at the time it was first filed?
Simply speaking, a patent invalidity search is a “date limited patentability search.” The goal is to find out relevant prior art documents across the globe before a critical date of the patent in question. The critical date in most jurisdictions is the priority date (the first filing date).
The relevant prior art documents are wide ranging. They include issued patents, published patent applications, scientific papers, journals, books and research theses, information available in the internet, meeting abstracts, lectures, conference proceedings, traditional knowledge, evidence of prior sale or use encompassing the invention, and prior availability of the knowledge to the public in any form in any part of the world.
While conducting an invalidity or validity search, it’s essential to refer the file history of the patent to identify the arguments and rejections to better evaluate the type of prior arts to be considered.
As the prior arts already cited on the face of the patent bears less importance in court judgments, it’s necessary to identify and report only new documents.
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