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Back in 1998 when I was going through my GCSEs (high school) I took graphic design and two of my projects were: a phone, and a car.

My phone concept I believe (if it was valid), would be a good example of prior art for the iphone and other touch screen phones. It was a flat touch-screen phone, the exterior looked more iphone 4-5 & sg2, rather than the edges of the original iphone/3g, simply because we had to construct our phones and I was keen to keep it as simple as possible (other people were painstakingly carving individual keys).

Long story short I wrote up the project, explained the concept, designed it, carved it out of foam. I personally saw it as the evolution of the current technology, palm pilots were all the rage, phones were starting to get smaller, and I was addicted to my game boy. In fact I thought it was so simple that I decided to change tact for my final GCSE submission to do a car instead.

The car was and electric sports car, inspired by the Lotus Elise. Unless there is a patent for the concept of an electric sports car (which I doubt), I think there isn't much point going into this.

What I am most annoyed about is Apple and co, claiming 'design' innovation, where if my 12 year old self was able to come up with the same concept, it can't have been that innovative. Would a child's graphic design project count as prior art?

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You mean a design patent, right? If you carved it out of foam, presumably you didn't describe the functionality, only the aspect? –  Gilles Sep 28 '12 at 17:00
    
I'm mainly referring to design patents, however the written report included how it would work functionally and which apps would be present –  MatthewFord Oct 5 '12 at 23:29
    
Thanks everyone for your answers, they're all very informative (have up voted) while I think the explanation of "prior invention" vs "prior art" was what I was looking for. –  MatthewFord Oct 5 '12 at 23:33
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4 Answers 4

up vote 5 down vote accepted

Is it "prior art"?: This is a good example of how "prior invention" might not qualify as "prior art." For the most part, prior art has nothing to do with inventing. Rather the creation of prior art requires some move toward publicizing an innovation (or filing for patent protection). Here, it seems that you probably did not create prior art because the design was kept within the confines of your school and examination system and not otherwise publicized or distributed.

Would it be Invalidating?: Lets assume a minute that your design did count as prior art. I suspect (without seeing your design) that it is similar, but somewhat different from the Apple/Samsung product designs. This is important because design patents (covering the ornamental shape of a useful article) are notoriously difficult to invalidate -- especially where the prior art is only similar and where the idea behind the patent was not derived from the prior art.

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To answer your question "would a graphics design project constitute prior art?" The quick answer is yes it most certainly has the potential.

Here's what you need to ask yourself.

  • was it made public? Given its a middle school project (you said you were 12?) I am leaning towards yes, like school gala or sharing your project. So others knew.

  • was it prior to apple's patent (filed in 2005?). If so, then, congratz, you have prior art.

(If your not from US, then change the fisrt question to "did you publicly print or sale it")

Now, whether this is proir art that anticipates and bars apples design is up to the courts to decide.

Just because you came up with at 12 doesnt mean it's obvious. That's not how obvious works in the patent courts. (Fot all we know you could be a genius at the ageof 12).

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I've got dual US and British citizenship, and I'm not sure how 'public' is the display cabinet of our graphics department. –  MatthewFord Oct 5 '12 at 23:31
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If it were PUBLISHED, then it could be considered prior art. Did anything happen other than your designs were turned in to your teachers? For a high school project, I'd think it unusual if it went any further than that, and thus it's unlikely that it's considered 'published'.

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It was laminated, bound, and submitted to the exam board, but no not published in the traditional sense –  MatthewFord Sep 28 '12 at 15:30
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The wording of the patent law is actually kind of tricky in this area. Patentability is covered by section 35 USC 102, which says (in part):

A person shall be entitled to a patent unless —

(a) the invention was known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for patent, or

So, if you were in the US at the time, or (you can show that) somebody in the US knew of your invention at the time, then it counts as prior art. Assuming, however, that you were in the UK at the time, and you didn't reveal it directly to somebody in the US, then it would have to have been described in a printed publication to qualify as prior art.

I'm not sure it's ever been tested in court, but given the wording of the law, if you even visited the US at any time between the time of invention, and Apple's inventing it, that could qualify your invention as invalidating prior art (i.e., it was known to you, and you were "in this country").

Edit: I should probably add: I'm not sure entirely sure whether the patent you're talking about is really a utility patent or a design patent. The wording above is (at least primarily) about utility patents -- I'm a lot less certain about design patents.

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(1) In the US, the rules of prior art are the same for both utility patents and design patents. (2) Should note that the "known or used by others" has been interpreted as having a "public" element. Thus, even if you were in the US, known within the confines of a high school (and your home) is probably not public enough. –  Dennis Crouch Sep 28 '12 at 17:05
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