novelty

In order to be a patentable invention, the invention must be new within the meaning of s 1(1)(a) of the Patents Act. This requirement prevents grant of patents for inventions which consist of inventions that existed before the application date for patent. The process of assessing novelty involves two steps:

1. assessing the materials forming the state of the art as at the application date; and
2. determining whether the state of the art anticipates the invention.

State of the Art

Section 2 of the Patents Act sets out the requirements for novelty. Firstly, an invention is not taken to be new if it is the case that the invention forms part of the state of the art. The state of the art is all that information in the public domain prior to the date of the application, whether that information was written, oral or in use anywhere in the world.

The state of the art excludes information which has not been made available to the public. Information which is in the public domain and free to be used by any person falls within the state of the art.

Enabling Disclosures

Disclosures which destroy novelty are known as ‘enabling disclosures’, as the disclosure ‘enables’ another to make or disclose the invention. Thus, a disclosure must be sufficient for a person skilled in the art to make the invention, while disregarding uses and disclosures which are subject to obligations of confidence. In both cases, this is because the invention has not been made available to the public.

Usage: Novelty in the patentable invention was destroyed by the enabling disclosure.

Related Words: patent; state of the art; inventive step; person skilled in the art; industrial application.