Types of searches
Do you know you can use a range of different search options and sources to find information about patents? We've provided detailed information to help you understand the options available to you.
Prior art searching
Prior art is information that has been made available to the public. A prior art search helps to determine whether or not it is worthwhile filing for a patent. Prior art that shows something is similar to your invention may restrict your ability to have your invention patented.
In order for you to obtain a patent, your invention must be new and involve an inventive or innovative step. If a product similar to your invention has been patented or described in a printed publication anywhere in the world, it may affect the possibility of you gaining patent protection.
The aim of a prior art search is to determine whether your invention is novel and non-obvious to people within that industry or field.
A prior art search may include searches of:
- patent databases (e.g. AusPat, the US Patent and Trade Mark Office, Japan Patent Office and the European Patent Office)
- Patent Cooperation Treaty database (known as Patentscope)
- proprietary databases
- the internet
Search before introducing a new product
When introducing a new product you need to ask yourself two things. Firstly, does this product infringe someone else's patent and secondly can I protect this product by a patent?
To help you answer these questions, conduct a 'prior art' search, which may include a search of Australian and international patent databases.
Patent infringement searching
Careful planning, searching and analysis are needed to determine whether a product infringes someone else's patent. AusPat is a useful place to start as it contains the details of the Australian patent collection.
You may not need to conduct a patent infringement search for every product you introduce. It may be clear from the length of time similar products have been on the market, that they do not infringe patents.
As an example, if you are making wooden coat hangers or plastic plates, it is unlikely you will infringe another's patent, as Australian patents last for 20 years from the date they are filed. Wooden coat hangers and plastic plates have been on the market for longer than 20 years.
On the flip side, if you are making cutting-edge technological advancements with your invention, it is essential that you conduct a patent infringement search. Technology that is not very old may infringe a patent that has not yet expired.
Patent searching is complex and no search will provide a guarantee that your product does not infringe another person's patent.
Always seek expert advice and consider the following when conducting a patent infringement search:
- Is the product made up of a number of components and, if so, should you conduct a search for some or all of these?
- How will you interpret the claims of any patents you find to determine whether you may be infringing them? Reading and understanding the claims of a patent is often a challenge.
- How can you access the full range of patents? While the full text of nearly all Australian patents is available in electronic form, there are gaps. Abstracts of patents can be searched electronically but are often an unreliable guide to the patent's contents.
- How can you ensure that you have searched all the categories under which your proposed product might be classified? For example a software program for controlling X-ray machines may be classified under 'data processing', 'image processing' or 'medical equipment'.
- How can you determine whether there is an outstanding patent application on your particular product? Patent applications may have been filed, but may not yet have been published - these are unsearchable. When a patent is granted on that application your product may infringe it.
If you are seeking the advice of an IP professional, they will need to know the following to carry out an infringement search:
- Detailed technical information about your product
- Where you make or intend to make your product
- Where you sell or intend to sell your product
- When you first made and sold your product
- Whether you use third-party components
Last Updated: 13/12/2012