Maiorana, P.C.

Do Non-patent References Count as Prior Art?

Yes, they do. We sometimes refer to non-patent references as non-patent literature, non-patent citations, or just non-patent prior art. MPEP 707.05(a) is entitled - Copies of Cited References.

When we do a prior art search, we often start with two main patent databases available at the USPTO. One patent database cites issued patents. The other patent database cites patent publications. I discuss the differences here.

While those databases are powerful, other types of non-patent references are also considered prior art when evaluating the patentability of your invention. I discuss information disclosure statements here. The Patent Office PTO-1449 form has three main sections. One section is for issued patents and patent publications. One section is for foreign patent references. One section is for general publications, which includes non-patent references.

So why does this all matter? When performing a patentability search, we are doing an analysis of the chances of your invention being patentable over the prior art available at the time. Since non-patent references count as art, we may include those in a search. For certain software patent applications, non-patent references may be the most powerful art available.