Patent Basics: Novelty or Newness
Novelty is one of the basic requirements of the patent statute. In order for a patent to issue, the invention must be new. You might think you know what “new” means. Who doesn’t, right? It’s pretty straightforward, right? Right?
Maybe in everyday life the concept of newness is taken for granted, but in the realm of patent law it’s a little bit more complicated. In fact, novelty is the most frequently litigated, or challenged, aspect of an invention.
Here are the basics. In the United States, in order for an inventor to receive a patent on an invention, he or she must be the first person to have come up with the idea. This is known as the “first-to-invent” rule, and it is the foundation of the novelty requirement, the bare-bones meaning of what it means for an invention to be “new.” Clearly, having this rule in place protects other inventors, but there is a second, not-so-obvious reason to have it in place. The novelty requirement also protects the public: once an invention has entered the public domain, it can effectively be said to belong to the public. Patenting something that already exists, then, would effectively take it away from everyone but the patent-holder.
Case Study: Novelty Requirement in Action
This novelty concept sounds simple enough, but there need to be concrete, legal ways of defining what it means to be the first to invent. Assume for the moment that you have invented a new type of hedge-clippers. In order for those revolutionary new hedge-clippers that you invented to be new in the eyes of a patent examiner or a court of law, there are several criteria they must meet:
- They cannot have been described in a printed publication (which includes previous patents) anywhere in the world before you invented them.
- They cannot have been in public use, or known or used by others (not necessarily publicly), in the United States before the date of invention. “Public use” means at least one open, unconcealed use for profit. It doesn’t mean generic “use in public,” although the exact definition of “public” can vary between situations. “Others” means just that, more than one other person.
- They cannot have been described in a printed publication anywhere in the world or put on sale or in public use in the U.S. more than one year before the date you file for a patent. This has nothing to do with the date you invented the clippers, but rather concerns the date you filed a patent application. This rule is basically in place to light a fire under inventors to get them to file for patents quickly once they have invented something. One weird little consequence of this rule is that inventors can shoot themselves in the foot if they’re not quick enough on the draw. For instance, if you sell a few of your hedge-clippers to your friends more than a year before you file for a patent, your own actions will make you ineligible to receive it. Or if someone else invents your clippers after you do, but files for a patent on it more than a year before you get around to it, the person will get the patent and you’ll get nothing.
If you want a really intense probing into the novelty requirement, you can check out U.S.Code 35, Section 102, which has the complete low-down. Good patent lawyers live and breathe this one. It’s not for the faint of heart.