Novelty
In the section on designs, we discussed the issue of novelty (see Novelty). Much the same assessment needs to be made with patents, except that the novelty now relates to how the thing works or how it achieves its result, not what it looks like.
In plain language, an invention is a process or device that has been newly developed or created. The newness (novelty) of an invention is measured, to determine whether it can be patented, by checking whether it forms part of the state of the art at the time the patent is claimed.
According to the Patents Act:
An invention shall be deemed to be new if it does not form part of the state of the art immediately before the priority date of any claim to that invention.
Read section 25(5) of the Patents Act.
As we have seen with designs, the state of the art is everything which is publicly available.
Again, the Patents Act:
The state of the art shall comprise all matter (whether a product, a process, information about either, or anything else) which has been made available to the public (whether in the Republic or elsewhere) by written or oral description, by use, or in any other way.
Section 25(6) of the Patents Act.
A practical way of looking at this question can be stated as follows: if the prior subject matter would infringe your patent, then your invention is not novel.
For your invention to be novel therefore means that, at least, you should not disclose it before you have applied for patent protection. If it has been disclosed, then you cannot claim that it was new at the time you applied. Fortunately, starting the process of securing patent protection is quite easy: you can file a provisional patent application. We look at this shortly.
There are two sets of circumstances where disclosure will not affect your ability to claim that your invention is new; in other words, where the novelty is not destroyed. They are:
- When the invention is disclosed or used without your knowledge or consent. However, if this is the case, you must apply for the patent protection immediately you learn of the disclosure or use.
- When you are doing technical trials or experiments.
Read section 26 of the Patents Act.
The next requirement for a valid patent is that the claimed invention must involve an inventive step.