Prior art can stop a patent. Dr. Steven Chudik sought to patent an implant for a portion of the humerus bone that would be utilized as part of shoulder replacement surgery. The Patent Trial and Appeal Board held that a French patent barred issuance of the patent as prior art. The Federal Circuit affirmed. So Dr. Chudik won’t be getting a patent.

WHY YOU SHOULD KNOW THIS. A patent has to be new, useful and non-obvious. “New” was Dr. Chudik’s problem. An invention isn’t new if there is prior art. The term, “prior art” sounds straightforward but can have a lot of nuances. In a nutshell, prior art is any of the following: (i) a description of the invention in a patent issued anywhere in the world prior to the patent applicant inventing it; (ii) a description of the invention in a printed publication published anywhere in the world prior to the patent applicant inventing it; or (iii) the invention is publicly known in the US, but not necessarily patented or published, prior to the patent applicant inventing it.

The ultimate question of whether any of these exist is best left to an experienced patent attorney who can do a due diligence search.