Novelty
Contents
Novelty
In the context of patent law, novelty is a fundamental requirement for an invention to be patentable. An invention is considered novel if it is not part of the prior art, which includes all information that has been made available to the public before the filing date of the patent application.
Key Aspects of Novelty
- Absolute novelty: Many jurisdictions require absolute novelty, meaning the invention must not have been disclosed anywhere in the world prior to the filing date.
- Grace period: Some countries allow a grace period, typically 6-12 months, during which disclosures by the inventor do not destroy novelty.
- Prior art: Includes patents, published patent applications, scientific literature, public demonstrations, sales, and any other public disclosures.
Assessing Novelty
To determine if an invention is novel, patent examiners compare it to the prior art:
- Single reference novelty: The invention must not be entirely disclosed in a single prior art reference.
- Inherency: An invention lacks novelty if it is inherently present in the prior art, even if not explicitly described.
- Anticipation: If all elements of the claimed invention are found in a single prior art reference, it is said to be "anticipated" and lacks novelty.
Novelty-Destroying Disclosures
Types of disclosures that can destroy novelty include:
- Publication: Articles, papers, books, or online posts
- Public use: Demonstrating the invention in public
- Sale or offer for sale: Commercializing the invention
- Public oral disclosure: Presentations or speeches describing the invention
Strategies to Preserve Novelty
- Non-disclosure agreements (NDAs): Use when discussing the invention with potential partners or investors
- Confidentiality: Maintain secrecy until the patent application is filed
- Provisional patent application: File early to secure a priority date
Exceptions to Novelty Requirements
- Experimental use: Some jurisdictions allow limited public testing without destroying novelty
- Disclosure in confidence: Information shared under confidentiality agreements may not destroy novelty
Novelty vs. Inventive Step
- Novelty is distinct from inventive step (non-obviousness in US patent law)
- An invention can be novel but still fail the inventive step requirement if it's an obvious modification of existing technology
Global Perspectives
- First-to-file system: Used in most countries, prioritizing the first person to file a patent application
- First-to-invent system: Previously used in the US, now aligned with the first-to-file system under the America Invents Act
Challenging Novelty
- Prior art searches: Conducted by patent examiners and can be supplemented by third parties
- Opposition proceedings: Allow third parties to challenge the novelty of a granted patent
- Invalidation actions: Legal proceedings to invalidate a patent based on lack of novelty
Conclusion
Novelty is a critical requirement in patent law, ensuring that patents are granted only for truly new inventions. Inventors and patent applicants must be diligent in maintaining the secrecy of their inventions prior to filing and thorough in conducting prior art searches to assess the novelty of their innovations.
