This article discusses patent novelty.

1. Summary

One of the requirements to obtain a patent is that the invention be novel (legal word for new). When the invention is publicly known then the invention is not novel and generally not patentable. In the U.S., there is a one year grace period exception for the work of the inventors or work derived from the inventors.

2. Introduction

Novel is a legal word that essentially means new. When an invention already exists, the invention is not novel and is thus generally not patentable. In a patent application, the claims define the invention. When the invention is not novel, the claims in the patent application may be rejected by the U.S. Patent and Trademark Office (USPTO) under 35 U.S.C. 102 for lacking novelty.

3. Patent or Printed Publication

For an invention to be considered not novel, a patent or printed publication must teach each element of the claims and be in the same configuration as the claims. An invention with the same elements but in a different configuration is novel (new).

For example, when the invention is a red car with a manual transmission, and an earlier filed patent application describes a red car with a manual transmission, the invention is not novel (new) and thus generally not patentable.

For another example, if a patent or printed publication has the components A connected to B and B connected to C, and the invention is components A connected to B and B connected to C then the invention is not novel (new) since the invention is the same as the patent or printed publication. On the other hand, if the invention has components A, B, C and the patent or printed publication has the components A, B, D then the invention is novel (new) since the components are different. Furthermore, when the invention is components A connected to B and B connected to C, and the patent or printed publication is A connected to C, and A connected to B then the invention is novel (new) since the configuration is different,

4. On Sale or Available to the Public

When an invention is on sale or made available to the public, the claims may be rejected under 35 U.S.C. 102. For more info about on sale and available to the public, see How Long Do Have to File a Patent Application.

5. Exceptions

In the U.S., there is a one year exception for the work of the inventors or work derived from the inventors. For more information about the grace period exception see How Long Do Have to File a Patent Application.

6. Other Requirements for Obtaining a Patent

There are additional requirements to obtain a patent in addition to novelty (35 U.S.C. 102). These include:

- Eligible subject matter (35 U.S.C. 101)

- Non-obvious - 35 U.S.C. 103

- Certain parts of 35 U.S.C. 112

- USPTO requirements defined in Manual of Patent Examining Procedure (MPEP). The MPEP includes the USPTO interpretation of 35 U.S.C. 101, 102, 103, 112, and court decisions. The courts are not bound by the USPTO interpretations and may decide an issue differently than the USPTO.