What is Novelty in Patents?

Introduction

In India, there are 3 conditions to be satisfied by an invention, for the grant of patent rights. These conditions are known as the “Trinity of Patentability”-

Novelty (newness)
Non-obviousness (exhibits sufficient inventive step)
Industrial Applicability (Usefulness)

Novelty means ‘new (invention or technology) as compared to the prior art. The term “Prior Art” means existing knowledge in the public domain in the form of published documents, existing products or any other form of public disclosure.

Section 2(1)(j) of the Patent Act, 1970 defines an invention as any invention or technology which has not been anticipated by publication in any document or used in the country or elsewhere in the world before the date of filing of a patent application with complete specification.

Why Is Novelty A Criterion For A Patent?

There is an international obligation of India as per article 27 (1) of TRIPS which says that a patent shall be available for any invention (whether product or process), in all fields of technology, provided that they are

New
Involve an inventive step and
Capable of industrial application

Confirming this obligation, India provided for section 2(1) (j) of the (Indian) Patents Act, 1970, which defines “invention” as a new product or process, involving an inventive step and capable of industrial application.

The novelty or newness is an international as well as national (statutory) requirement for the grant of the patent.

How Is “Novelty” Determined?

In India, novelty is primarily determined by an examiner at the Patent Examination stage. Each patent must be compulsorily examined by a Patent Examiner, whose duties include checking all aspects of Patentability of the Application.

To check for Novelty, the examiner compares the claimed invention or technology with the prior art. Firstly he specifies the claimed invention and then the prior art and compares both. Where there is no difference between the claimed invention and the prior art, there is no novelty.

An invention is novel, if it is not “anticipated” by prior art. If the crucial elements of the invention have already been disclosed to the public by prior publication, commercialized products, existing inventions etc. which use the same technology, the invention is said to be anticipated.

One thing inventors must keep in mind is that it is completely possible for the invention to be self-anticipated. That is, the publication that denies novelty can have been made by the inventor themselves. This is one of the primary reasons why inventors are advised to keep their invention under wraps till an application is filed for a patent.

Conclusion

Novelty is an indispensable condition for an invention to be patented. The rationale behind this requirement is to encourage inventions and continuous development and improvement over what exists today.

Author: Shubham Panwar, Legal Intern at PA Legal.

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