Patents absolute novelty

Novelty is essential to patentability and is well-defined in the respective patent laws of at least the United States of America, the European Patent Convention (EPC) [1], Japan, and other jurisdictions. Nothing can be patentable that is not new. Although novelty is basic to patentability, different concepts of novelty exist throughout the different patent systems in the world. The most straightforward is that of absolute novelty , which is applied by the European Patent Convention in Art. 54 ... 

The different definitions of novelty in these important patent systems have far-reaching consequences. An invention may be novel according to U.S. law, even if it lacks absolute novelty as applied by the EPC. For example, if an inventor describes the invention in a printed publication, he must apply for a patent in the United States before one year (according to 102 (b)) has passed - otherwise any right to a U.S. patent is lost. In contrast, the inventor must file his patent application on the publication date, at the latest, if he wants to secure patent protection under the European Patent Convention and the national patent laws of many other countries. 

An invention possesses novelty when the technical knowledge for which the patent protection is sought is not included in the state of the art. Not in the state of the art is usually defined as all the information not available to the public, in any form of disclosure - oral, written, digitized, use/ exploitation, among others - at the time of filing the patent application. Absolute novelty is adopted by most countries, meaning that which has not been disclosed anywhere in the world. 

The concept of absolute novelty at the filing date of the patent application is now to be found in practically all patent laws, with the exception however, as said before, of the law of the United States. 

Several differences between U.S. patent law and the patent law of almost every foreign country also significantly affect patent strategy, especially the determination of when to file a patent application in the United States. Some of the most important of these include the rules for determining priority and the requirement of "absolute novelty" essentially everywhere except the United States. These differences are discussed next. 

The need for monitoring and controlling technical information does not end with the filing of the initial patent application. Disclosures relating to an invention claimed in an earlier patent application may also contain information concerning new inventions or improvements of the earlier claimed invention, which may be the subject of later filed applications. In addition, control of the disclosure of inventions contained in a patent application may allow for filing patent applications in countries requiring absolute novelty after expiration of the convention year, should that become necessary or desirable. Failures to file... 

The U.S. patent system differs in a number of ways from many other national patent systems. Some of these differences are discussed above, including patentable subject matter, priority of invention, and absolute novelty. 

Novelty is the sine qua non of every invention. The requirement for novelty is very severe, since it has an absolute character and since any prior public knowledge is destructive of novelty. An invention may be protected if it is new and thus enriches technology. However, within this broad definition, the term may be subjected to different interpretations. It appears simple enough but has developed quite differently under the various patent systems. 

An invention is novel if it was not part of the prior art before the priority date vide infra) of the patent application that claims the invention. The prior art comprises all oral or written information publicly available before the priority date of the application (in some countries the prior art must be publicly available in those countries). This criterion is essentially absolute everywhere except in the USA, where there is a grace period of 1 year, within which one can file a patent application even if the invention has been earlier divulged, either by the applicant or by another. Novelty is fairly strictly interpreted thus, one can obtain a patent on a compound which is within the scope of an earlier publication, which teaches a generic formula with multiple substituents on a core structural element, but which does not specifically show the now-claimed compound. Thus, to determine novelty, one compares the date of invention (US law) or priority filing date with the divulgation date of the supposed prior art. If the subject matter is the same and the divulgation date of the publication precedes the invention/filing date, then the invention fails the first test and cannot be patented. 

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