I am trying to determine whether I should include this section in a Non Provisional Application (NPA).

As I read the 'Background of the Invention' it seems to provide the history of the technology and where the invention fits into the timeline. The patent is 22 years old.

  1. How does including the prior art in the NPA help application process?

I understand it is critical that one identifies all the prior before applying because the prior defines the scope of what can NOT be patented. That being said, I am should I be concerned about citing prior art? I seem to remember advice indicating not to cite prior art ("Don’t Describe the Prior Art") , but to be very aware of any and all existing prior art to avoid 102 Novelty 103 Obviousness rejections.

  1. What is the purpose of this section?

  2. Is 'Background of the Invention' obsolete? or is it required?

  • For pro se inventor, it is advisable to adhere to normal format. Instead of digging out any particular invention, better to stick to basics of i. mention field in field section, ii. mention status of technology in the field i.e. difficulties, problems or shortcomings in the background section and sail through the rest. Concentrate on description and claims so that you stand out as different from or improvement over prior art and take care of Alice-Mayo test. Best of luck. Jul 11, 2018 at 3:47
  • But don't let a discussion of shortcomings be a "disparagement" of the prior art.
    – George White
    Jul 11, 2018 at 4:15

1 Answer 1


1) It doesn't, if you describe your invention effectively and claim it well, it should be given to an expert at the USPTO that knows a significant amount of background. If you have prior art, cite it in an IDS.

2) To provide context of the invention. Typically there are too many pitfalls and little benefits and so it no longer serves its purpose

3) Yes it is obsolete, yes it is required. Per 608.01(a): (b) The specification should include the following sections in order:.... (7) Background of the invention.

Most patents I see these days have a background section that is pretty bland and stale. Here's the background section of the newest Apple application on google:

[0004] Electronic devices are becoming increasingly popular in a range of applications. Mobile phones, tablet computers, home entertainment systems, and the like are just some of the electronic devices users interact with regularly.

[0005] In addition, various electronically controllable devices, such as thermostats, lighting devices, household appliances, etc. are also becoming more popular.

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