When applying for a patent before the US Patent & Trademark Office (USPTO), you are required to tell the USPTO of similar inventions you are aware of. Failure to do so may result in the loss of your patent rights.
Duty to Disclose
For example, let’s say you know someone is already selling a similar invention. Your invention is better than the similar invention and you believe you deserve a patent for your invention. When applying for a patent, you are required to disclose to the USPTO the existence of that similar invention. This way, the USPTO can compare the similar invention to your invention and decide whether your invention deserves a patent. You may not stay silent and hope the USPTO never finds the similar invention. If you know about a similar invention, you are required to tell the USPTO about it.
Information Disclosure Statement
Disclosure of similar inventions is done through an Information Disclosure Statement (IDS), which is filed to the USPTO to meet this requirement. The USPTO patent examiner will then review the similar inventions you listed on the Information Disclosure Statement as part of their examination process to determine whether your invention is eligible for a patent.
Bad Faith or Intentional Misconduct
If you fail to disclose a similar invention you know about, the USPTO may consider you to have applied for a patent in bad faith or with intentional misconduct. The consequence is not being granted a patent or loss of patent rights.
Duty of Candor and Good Faith
The idea behind the requirement to inform the USPTO of similar inventions relates to a duty of candor and good faith. Patents should only be granted to those inventions that are novel, nonobvious, and useful when compared to similar inventions. If you know of a similar invention, the USPTO says you should tell them about it so that they consider it when examining your patent application. Hiding a similar invention you know about and hoping the USPTO doesn’t find it is not applying for a patent in good faith. You must candidly let the USPTO know of similar inventions you are aware of and despite the existence of those similar inventions, ask to be awarded a patent.
