“Novelty” is one of those terms that sounds intuitive—until you look more closely.
In science, novelty might mean being the first to propose a new theory, or to substantiate (or disprove) a leading paradigm.
In business, it might mean offering a product that is meaningfully differentiated from what’s already on the market.
But in the world of patents, “novelty” has a much more specific—and sometimes unforgiving—meaning.
So what does it actually require?
Contrary to some common misperceptions, patent novelty means that the idea or technology has not been made available to the public. In many cases, that comes down to publication—anywhere (in a research paper, a patent or patent application, a website, etc.), and in any language.
And here’s the kicker for many people:
A prior publication—even by the inventor(s) (!)—can preclude patent rights. (Some countries have grace periods after such publications, but relying on them can be risky and is beyond the scope of this article.)
There are also other events, beyond classic publication, that can affect patentability—and these vary between jurisdictions.
For example, a commercial offer for sale can prevent patentability in the US, under 35 U.S.C. §102 (https://www.uspto.gov/web/offices/pac/mpep/mpep-9015-appx-l.html#al_d1fbe1_234ed_52). Notably, under US law, even a commercial offer that does not publicly disclose the idea or technology can, in some circumstances, be enough.
European patent law is more nuanced. Under European Patent Convention Article 54 (https://www.epo.org/en/legal/epc/2020/a54.html), the key question is whether the idea or technology was made available to the public. A commercial offer will typically only be problematic if it is non-confidential and makes the technology accessible in an enabling way.
Yet another example is an earlier-filed, but not yet published, patent application. Such documents are sometimes referred to as “secret prior art.” In the US, such prior art can sometimes be excluded if it originates from the same inventor or is commonly owned (subject to specific statutory conditions). In Europe, it is always citable against novelty (though not against inventive step—which will be the subject of another post).
This post just scratches the surface of how nuanced the novelty requirement can be across jurisdictions. It’s not legal advice—but if you have a specific situation in mind, feel free to reach out.