How Do You Know if a Patent Already Exists?

Searching is easier than ever

To search patents, you need a patent database. Not long ago, your search had to happen at the patent office. Now, the United States Patent and Trademark Office makes its entire database of patents available for patent searches. Services like Google also index patents. Through the internet, inventors have access to resources, especially for a U.S. patent search, to search for patents unimagined.

It is easier now to search patents than ever before. Before you patent an idea, you need to know more than someone else who has already patented your idea. You can repeat multiple patent searches, using a variety of keywords. Search patent databases as soon as possible so that you can find out quickly if someone has already patented your invention. That way, you can change direction or invent something else.

Know what you are looking for

To conduct a patent search, you have to know what makes your invention novel. That means, what is it that makes your product, service, or system new and different?

The next step is to break down those new features into search logic. Let’s say your product is a new key ring that makes it easier to clasp your keys to the side of the purse. The novel parts are the spring-loaded clasp that allows the user to clip it to the side of a purse with one hand.

To search for your invention, reconstruct those elements: keychain, purse, spring, and clasp. Next, expand on your search phrases with any possible synonyms that you can think of: (keychain OR key ring) AND (purse OR handbag). Keep refining your search to get the number of hits down to something manageable. Keep track of your search logic. Write it down and know how many hits each search resulted in.

When reviewing patents, it's important to be aware of what's in the body of the patent and what is in the claims, as they will have different effects on the invention. The patent body can be used against the novelty of your invention, and the patent claims can be used against your product for patent infringement. If you look at the claims at any point and later infringe them, you may be liable for "willful infringement," which means triple the damages.

Keep track of the patents you review. With a utility application, you need to file an information disclosure statement (IDS) that includes all related references you are aware of, which now includes all the reviewed patents.

The patent office receives more patent applications now than at any other time in history. You will want to repeat your search periodically to make sure that there are no new patents that are close to your invention. Keeping your search logic makes sure you can easily repeat your search.

Near misses and direct hits

You finish your search and find no one else has patented your invention. You do, however, some other patents. Someone invented a similar spring-loaded clasp for the back of a stroller. It is different, with a bigger spring and different shaped clasp but it shares many similarities.

Even if someone has not patented your invention, your search is very important. Patents require absolute novelty. No one can ever patent the same invention. Patents also cannot be obvious, this means, in legal terms, that a reasonable expert in the field could not have simply figured out how to create the invention. Looking at the stroller clasp, the patent office could argue that your purse clasp is an obvious modification of the stroller clasp—maybe the only real difference is the size.

When you write your patent it is best to include details that make it easier to argue that your purse clasp is not obvious: Perhaps the small size of the spring requires special materials or the shape of the clasp has to include a specific angle. Either way, it is better to know about the stroller invention ahead of time, to reference it in your patent and include details that differentiate it over the stroller clasp.

Even if you are filing a provisional patent, conduct a patent search. Even if no one has patented your invention, it is important to know what else is out there.