Novelty - Concepts Flashcards
Learn the concepts of patent novelty
Three types of novelty
Absolute novelty (pub + use anywhere: UK and EPC
Relative novelty (app made anywhere, use in jurisdiction): used to be applied in US and China
Local novelty (pub or use in jurisdiction): used to be applied in New Zealand
Priority date
The date of filing of the application, or the date of filing earlier app for same invention
The date on which the novelty of the invention is judged (i.e. determines what is the state of the art)
Defines various timelines (e.g. 18 months for publication)
Prior art
Something that existed in the state of the art before the priority date of the invention
Anticipated
Some piece of prior art affects the novelty of the invention
Possible fetters to anticipation
Non-disclosure agreement or duty of confidence
Infringement test for anticipation
For prior art to anticipate an invention, it must disclose subject-matter which, if performed, would result in the infringement of the patent. (Synthon)
Enablement
The ordinary skilled person would have been able to perform the invention which satisfies the requirement of disclosure (equates to sufficiency) (Synthon)
EPO novelty
Article 54 EPC
(1) An invention will be new if it does not form part of the state of the art.
(2) The state of the art comprises everything made available to the public by means of a written or oral description, by use or in any other way before the priority date of the present invention.
Types of disclosure
- In documents
- In meetings (problem of evidence)
- In drawings
- On the internet
Unpublished appications
Section 2(3) PA77
The disclosure of an unpublished patent application (i.e. one that is not published at the date of filing of the present app) shall form a part of the state of the art if:
(a) the matter contained in the app both as filed and as published
(b) the priority date of the unpublished app is earlier than that of the present invention
Non-prejudicial disclosures (UK)
s.2(4) PA77
Grace period of 6 months from disclosure for disclosures where:
(a) the disclosure was made by obtaining the matter unlawfully;
(b) the disclosure was made in breach of confidence; or
(c) the disclosure was made at an international exhibition and the applicant states this when filing the application and provides written evidence in support of this.
Non prejudicial disclosures (EPO)
Art 55 EPC
6 month grace period for disclosures where:
(a) there was an evident abuse of the applicant (or legal predecessor) - basically breach of confidence
(b) the disclosure was made at an officially recognised international exhibition
