Patent Attorney and Founder
Let’s dive into the question: What happens if a patent examiner misses prior art, and the patent ends up being invalid later on? Do examiners face any consequences?
Hi, I’m JD Houvener, founder of Bold Patent Law Firm, and a patent attorney. I’ve had the privilege of helping inventors secure nearly 500 patents so far. I’m also the author of Bold Ideas: The Inventor’s Guide to Patents. If this is your first time on our channel, be sure to grab the Bolt Inventor Kit, which includes a copy of my book along with resources to help inventors get started.
Now, back to the topic. What if a patent gets approved by an examiner but is later found invalid because they missed some prior art during their review? Do the examiners get in trouble or lose their jobs?
It’s a good question, and it happens. Examiners are human, after all. They can make mistakes or overlook things. And this is why it’s so important for you, the inventor, to do your part in the process. As the inventor, you’re responsible for ensuring that the patent is thoroughly examined.
One of the best ways to help the examiner is by conducting your own patentability search. If you find any relevant prior art, you’re required to share it with the examiner. This is part of the process, and it’s done through an information disclosure sheet that you, along with your attorney, submit as part of the application. The more you give the examiner, the better their chances of spotting potential issues.
But here’s the tricky part: non-patent literature. This includes everything outside of patents—articles, research papers, products in the market. These are harder to find and don’t always show up in the usual patent databases. It’s a challenge for examiners, and sometimes they miss these sources.
In patent litigation, if a big company is involved and the patent is found to be invalid, they might dig deep and find things the examiner missed. They might search physical bookstores, obscure databases, or anything that could help invalidate the patent.
However, it’s important to note that, unless an examiner willfully ignores a known piece of prior art for personal gain, it’s unlikely they’ll face any real repercussions. Human error and limitations in technology do happen. In fact, the only time an examiner might face serious consequences is if they intentionally overlook prior art, which would be considered misconduct.
But for the most part, examiners are doing their best, often under a lot of pressure. They are the gatekeepers, ensuring patents that shouldn’t get approved don’t slip through the cracks. So, rather than blaming the examiner, it’s on you, the inventor, to make sure they have all the information they need to do a thorough job.
And remember, patent searching is key. Don’t skip it. Give your examiner the best shot at spotting any issues, and appreciate the hard work they put in to help protect your ideas.
Thanks for watching! I’m JD Houvener from Bold Patent Law Firm. Go big, go bold!