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I have read and heard that known similar patents and other prior art should be disclosed in the patent application, yet I find no examples of such disclosures in the "Background" sections (or any other sections) of existing similar or related patents, granted or not. So is it important or advisable to include, or not?

If so: Should the patent prior art be a listing of existing similar patents (number and title) with commentary on the similarities and differences as compared with the submitted invention disclosure?

For non-patent prior art, and referring specifically to software, how should existing software be presented for comparison to the invention of the disclosure? Links to the software's website, or articles about it?

Is it better to list all of this in an IDS form rather than in the main patent application document?

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Your question is somewhat vague, so I will provide a somewhat vague answer:

You must tell the patent office about any relevant references you know about. The best way to do this is in an information disclosure statement (IDS). You do not have to search for references, but it is to your advantage to do so. It's hard to write a good patent application if you don't know what is in the prior art.

Anything mentioned in the background section is considered admitted prior art, so be careful about what you put there. As the saying goes, "Anything you say can and will be used against you." A background section is not required, so you can skip it if you want, but it is customary to include one. References listed in an IDS are not considered admitted prior art.

You do not need to include "commentary on similarities and differences" and I suggest that you do not include any such commentary. It is up to the examiner to decide whether or not a reference is prior art.

For software, present what you know. Is there a relevant code snippet you know about? Or just a description of what some code does? Whatever it is, you can cite it in an IDS and include a copy if it is not a patent document.

Hope that helps.

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  • Thanks, this does help. I've seen a bit of disagreement about prior art references in Summary vs. Background, but you seem to be agreeing with my earlier understanding that it should be in Background, is that correct?
    – Charles
    Jun 14, 2017 at 0:48

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