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Prior art Search has three types below:
(i) Novelty Search conducted before research and development of the art or preparing a patent application.
(ii) Invalidity Search to find prior art that the patent examiner overlooked so that a patent can be declared invalid based on the prior art. If an entity finds someone else’s patent or utility model which can be an obstacle to his business, he needs invalidity material. A patent owner or other entity that has a financial stake in a patent should confirm the validity of a patent before suing for infringement.
(iii) Clearance search in order to check if a given product or process violates someone else’s existing patent. The clearance search is a search targeting patents being in force and may be limited to a particular country.
Needs for Invalidity material
An application for patent can be rejected and a patent/utility model can be invalidated when the claimed invention was known at the filing of application. Hence, Invalidity material against Intellectual Property can be an evidence of invalidity in an infringement litigation of Patent/Utility Model resulting in a solution of infringement dispute. In addition, it is necessary for assessment of the object of licensing or assignment agreement, which can be the basis of bargaining power in negotiations.
In China, national policy encourages obtaining Intellectual Property thus the number of applications filed by domestic companies are increasing. Chinese Utility models and Designs are granted without substantial examination while these rights can be easily enforced. Therefore, Invalidity Search becomes more important for companies having business in China. In Schneider Electric case, a Chinese court approved enforcement of utility model right of a Chinese company and fined Schneider in France for huge compensation for damage resulting in an agreement with high amount of money paid by Schneider in 2009. In the appeal for Invalidity decision, Schneider indicated their own product sold in China before filing the application. However, it was not adopted as evidence because it lacks date attestation certified by a Chinese notary public. On the other side, the bar for proof of compensation for damage and proof of jurisdiction of the district court was not high for Chinese plaintiff.
For more information, please see INVALIDITY SEARCH (1).