Answer By law4u team
In patent law, novelty is one of the essential criteria for determining whether an invention is patentable. An invention is considered novel if it is new and has not been disclosed or made available to the public in any form, anywhere in the world, before the filing date of the patent application. Essentially, novelty ensures that the invention is not already part of the public domain. Here's a detailed explanation of novelty in patent law: 1. Definition of Novelty in Patent Law Novelty refers to the requirement that an invention must be different from all prior art. Prior art refers to any existing knowledge or technology that has been publicly disclosed, either in the form of written publications (such as journals, patents, or books), public demonstrations, or other media. If an invention has been disclosed in prior art, it cannot be patented. In simpler terms, an invention is novel if: No identical invention has been publicly disclosed before the filing date of the patent application. The invention is not obvious to someone with ordinary skill in the field of technology (which is covered by the concept of "inventive step" or "non-obviousness"). 2. Key Aspects of Novelty The novelty requirement ensures that a patent is granted only for inventions that provide something new to the field, and not for ideas that already exist. Below are the key aspects: a) Prior Art Prior art encompasses everything that has been publicly disclosed before the filing of the patent application, including: Existing patents (both granted and pending) Scientific literature (journals, articles, books, etc.) Conferences and presentations Products or methods that are publicly available Any public use of the invention (such as in trade shows, on the market, or in the public domain) b) Global Novelty Novelty is assessed on a global basis, meaning that it doesn't matter whether the invention was disclosed in India or abroad. If the invention has been publicly disclosed anywhere in the world, it is no longer considered novel and, thus, cannot be patented. c) Absolute Novelty Absolute novelty means that the invention must not have been made publicly available in any form, at any time, before the filing date. This rule ensures that if an invention has been disclosed, even in a foreign jurisdiction, it cannot be patented in India. 3. How Novelty Is Evaluated The novelty of an invention is generally assessed by the Patent Office and the patent examiner during the examination process. To assess whether an invention is novel, the examiner typically follows these steps: 1. Search for Prior Art: The patent office conducts a search for prior art in patent databases, scientific journals, publications, and other sources to determine if the same or similar invention has been disclosed before. 2. Comparison: The examiner compares the invention to existing prior art to assess if it is identical or substantially the same as any previously disclosed invention. 3. Examination Report: If prior art is found, the patent examiner may issue an examination report and reject the patent application for lack of novelty. If no prior art is found, the invention is considered novel. 4. Exceptions to Novelty While the novelty requirement is quite strict, there are some specific situations in which an inventor may be allowed to claim novelty even if prior art exists: a) Grace Period Some jurisdictions (including India) allow a grace period for the inventor. If the inventor publicly discloses the invention or presents it in public before filing a patent application, they may still be eligible for patent protection if they file within a 12-month grace period from the date of disclosure. This grace period applies only to certain types of disclosures, such as presentations at conferences, public demonstrations, or publications. b) Secret Use If an invention is used in secret (i.e., not disclosed to the public) before the filing date, such use is not considered prior art for the purposes of evaluating novelty. 5. Examples of Lack of Novelty Example 1: If an inventor applies for a patent for a new type of bicycle helmet but there is already a patent or public document that discloses the same or very similar helmet design, then the invention lacks novelty, and the patent application would be rejected. Example 2: If a company files a patent for a new drug but that drug or its key components have already been disclosed in a published scientific paper before the filing date, the patent would lack novelty and be rejected. 6. Difference Between Novelty and Inventive Step (Non-Obviousness) While novelty ensures that the invention is new, the concept of inventive step (or non-obviousness) ensures that the invention is not merely an obvious improvement over existing technology. Both criteria must be met for an invention to be patentable: Novelty means the invention is new and has not been disclosed before. Inventive step (non-obviousness) means that the invention is not obvious to a person skilled in the field of technology, even if the prior art is known. 7. Novelty in the Indian Context In India, the Patents Act, 1970 governs the patent process, and the novelty requirement is outlined under Section 2(1)(j) of the Act. The Indian Patent Office assesses novelty based on global prior art, and if it determines that an invention has been disclosed in any form before the filing date, it will not grant a patent. India also adheres to the principle of absolute novelty, which means any public disclosure prior to the filing date, including that made abroad, could invalidate the patent claim. 8. Conclusion Novelty is a critical requirement for an invention to be patented. An invention is novel if it has not been disclosed in any prior art before the filing date of the patent application. Prior art can include patents, publications, public use, or any other form of public disclosure. The novelty requirement ensures that only new inventions are granted patents, thereby encouraging innovation. In the Indian context, the global novelty rule applies, meaning any prior public disclosure worldwide can destroy the novelty of the invention. Understanding the concept of novelty helps ensure that patents are granted only for truly new and innovative ideas, and not for inventions that are already in the public domain. If you're filing for a patent, it's always advisable to conduct a thorough prior art search to ensure that your invention meets the novelty requirement.
