Prior art is a term of art

Recently I blogged about an inequitable conduct argument involving an inventor characterization of a drawing as "prior art." Specifically, the accused infringer cried "inequitable conduct" for non-disclosure of a drawing in an invention disclosure form, when that drawing was characterized in the disclosure as "prior art." (See my post here.)

The district court in that case ignored the infringer's argument, but why give the infringer any ammunition by using the term "prior art" in the disclosure context? Certainly we want inventors to provide a list of any references they're aware of which may be relevant – but an attorney should be involved in the determination of what is or is not prior art.

The post Keep Your Story Straight: Five Important Patent Terms from the blog IP Law for Startups agrees with me, noting that:

“Prior Art” is a legal conclusion that should be made by an attorney, a judge, or the USPTO. An inventor runs the danger of making an “admission” that a reference is Prior Art – when in fact it is not.