Conducting a Patent Search

The key to a good patent search is to be thorough

If you've already perused the web looking for advice on how to make your invention successful, you've probably encountered much conflicting information.  This is natural, because there are a number of camps who do not agree.

One point of disagreement centers upon the issue of how to achieve a thorough patent search.  Well-meaning lawyers will emphasize that only a trained patent attorney can perform a quality patent search, because that is what they sincerely believe (but let's face it Socrates, even they must acknowledge it's easy to earnestly believe that a service one provides for a couple thousand dollars is worth the money).  The less-than-well-meaning lawyers will say the same thing.  The invention submission cartels (speaking of less-than-well-meaning), will insist that they can do just as good a job.  And then there are sources, The Essential Inventor's Guide included, that assure you that you can do it yourself.

The truth is that a thorough patent search isn't rocket science.  Because all patents issued before 1976 can only be searched by keyword codes, there is quite a bit more to performing a good search than simply skipping over to USPTO's website and typing a few keywords into their database search engine, but armed with a few basics, anyone can perform exactly the same search as a patent attorney, using exactly the same tool – a patent database search engine (there  are other online resources beside the USPTO, such as

The real issue isn't whether or not you (or anyone else) can perform a thorough patent search, but will you.  A good patent search is a lot of work, and open ended.  A patent search seeks to prove a patent does not already exist for an invention.  The trouble is, how can you prove something doesn't exist?  You can't.  All you can do is provide good evidence by looking really hard and hopefully not finding one.  If you do find the invention already claimed in the prior art (as the body of existing inventions is general referred), then you know that positively.  But not finding it only tells you that either it does not exist, or simply that you didn't find it.   So ultimately it simply comes down to the more effort, the better the search, the lower probability of getting surprised later.

So how can you know you've been thorough?  Generally, any competent patent attorney will inform you that the odds of finding no prior art that is similar to, or partially overlaps your invention is very small.  So if you haven't found anything relevant, either your invention is way out in left field or chances are you haven't yet looked hard enough.  Of course, hiring just anyone with a patent law degree does not ensure a thorough search either.  There are plenty of bad attorneys out there.  Truly, the only way to know a patent search has been conducted to completion is to do it yourself.

No matter how hard you look, a patent search is never for certain (nothing in life is).  Prior art constitutes any publication (not just patents) or reduction to practice of the invention anywhere in the world.  Of course, to get a patent it is only necessary that the patent examiner not find any prior art on which your patent claims infringe.  But, years after your patent is issued and your invention is (hopefully) taking the marketplace by storm, if someone digs up a dusty leatherbound 13th century ledger showing an illustration of your invention, your patent is immaterial.  So be thorough.

The good news is that patent searches which come up positive (meaning your invention already exists), usually do so quickly.  The key to winning poker isn't how much you take in when you win, but how little goes out when you lose (since statistically five sixths of your hands will be losers when sitting at a table of six).  Similarly, the trick to manageable patent searching isn't how much time you spend on the ones that come up negative, but how little time you spend on the ones that come up positive.  If the ultimate result is that you find you've hit paydirt, spending forty hours is well worth the effort.  That's not as much so if you spend that much time only to hit a dead end (but anything's better than hitting the same brick wall after moving forward with an application).  The Essential Inventor's Guide will teach you to search in stages, first exploring fast high-probability searches, and only moving on to more time consuming, more tedious steps if preliminary searches come up negative.

The Essential Inventor's Guide

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