Breaking New Ground: The Quest for Novelty in Patent Law

14 January 2025

This resource outlines why novelty of an invention is important in patents and how to address this when you come up with a new product or method.

Novelty is a fundamental requirement in patent law, serving as one of the three main criteria for obtaining a granted patent alongside inventive step and industrial applicability. This comprehensive overview will explore the importance of novelty in patents, its implications for inventors and companies, and strategies for preserving novelty before applying for a patent.

NOT YET PUBLIC

Novelty means that the invention has not been disclosed to the public in any form, including but not limited to, online platforms, printed materials, or any other medium.

The scope of what constitutes public disclosure is surprisingly broad. It encompasses a wide range of activities, including:

1. Online publications including advertising and marketing on website
2. Printed materials
3. Presentations at conferences
4. Displays at exhibitions
5. Local newspaper articles
6. Non-confidential discussions with potential investors or partners

Even seemingly minor disclosures can have significant consequences. For instance, a PowerPoint presentation made accessible to the public or a casual conversation with a prospective customer could potentially destroy the novelty of an invention 

The Crucial Role of Timing

In the patent world, timing is everything. The moment an invention is exposed to the public eye, the clock starts ticking on its potential patentability. This is why many countries operate on a “first-to-file” system, making the swift filing of patent applications crucial for inventors seeking to protect their innovations 

In some cases, engineers or researchers in a company, in their eagerness to disclose innovative products or methods in scientific conferences through submission of papers or panel sessions, can also destroy the novelty of an invention.

Any public disclosure can destroy the novelty of the invention. It’s important to note that whether someone has used the knowledge is irrelevant. Similarly, whether or not anyone comprehended the information they obtained is inconsequential. What is crucial is whether the disclosed information is adequate to reproduce the invention. Thus, the focus is on the nature of the information disclosed, not the recipient. It suffices when the details about the solution are accessible to a broader audience than just its inventors or the individual authorized to file the application.

Purpose of Novelty

The novelty requirement in patent law serves several crucial purposes:

1. Encourages Innovation: By requiring inventions to be new, the patent system incentivizes inventors to create unique and innovative solutions. This drives technological progress and fosters a competitive market environment 
2. Prevents Monopolization of Known Knowledge: Novelty ensures that only new inventions are patented, preventing individuals or companies from claiming exclusive rights over existing knowledge. This safeguards against the monopolization of public domain information, which could otherwise stifle innovation and restrict access to technology. 
3. Enhances Legal Protection and Commercial Value: An invention that meets the novelty requirement is more likely to receive patent protection, which can significantly enhance its commercial value. Patents provide inventors with a competitive edge by granting them exclusive rights to exploit their inventions 
4. Avoids Legal Disputes: Ensuring that an invention is novel before filing a patent application can help avoid legal disputes over patent validity. If an invention is found to lack novelty, the patent can be challenged and potentially invalidated 
5. Balances Inventor and Public Interests: The novelty requirement strikes a balance between rewarding inventors for their innovative contributions and ensuring that existing knowledge remains freely available to the public. This balance is crucial for promoting overall technological advancement and economic growth 

A filing date is important in patent law because it establishes who created the invention first and therefore the rights to the invention. If someone else filed a patent application for the same invention at a later filing date anywhere in the world, your patent application pre-dates the other patent application and it will lose novelty because of your patent application.

Keep your invention secret before filing patent application

You should not reveal, sell, licence or advertise the invention to the public before applying for a patent.

“If you disclose your invention publicly before filing a patent application, you may limit your patenting options and you may have a limited time to take action. If you need a third party to assess or help with the invention, make sure they sign a confidentiality agreement before revealing your invention.“

Strategies for Preserving Novelty

To maintain the novelty of an invention and enhance the chances of obtaining patent protection, inventors and companies can employ several strategies:

1. Confidentiality Agreements: Use non-disclosure agreements (NDAs) when discussing the invention with potential partners, investors, or collaborators. This helps prevent unintended public disclosures. 
2. Avoid Public Disclosures: Refrain from publishing articles, presenting at conferences, or sharing details about the invention on social media or other public platforms before filing a patent application. 
3. Provisional Patent Applications: File a provisional patent application to secure an early filing date while continuing to develop the invention. This provides a 12-month period to refine the invention and prepare a full patent application.  
4. Regular Patent Searches: Conduct regular patent searches to stay informed about developments in the field and ensure that the invention remains novel throughout its development. 
5. Strategic Use of Multiple Provisional Applications: For inventions undergoing continuous development, consider filing multiple provisional applications to cover different aspects or improvements as they evolve. 
6. Timely Filing: File patent applications as soon as the invention is sufficiently developed. This is particularly important in first-to-file systems to secure priority. 
7. Grace Period Awareness: Be aware of grace periods in different jurisdictions. While Singapore offers a one-year grace period for public disclosures, this is only for limited situations. Many other countries do not have a grace period. Plan international patent strategies accordingly. 

File a Provisional Patent Application if disclosure is imminent

If you need to disclose your invention imminently, it is advisable to file a provisional patent application in order to preserve novelty of the invention.  It is a quick and relatively inexpensive way to declare the invention as your own. When you file a provisional patent application with a Patent Office, you declare the rights to your invention because you will be issued a patent application number together with a filing date.  

A provisional patent application is different from a complete patent application as it does not contain claims (numbered paragraphs at the end of a patent specification) that defines the scope of the invention. Drafting a proper set of claims require significantly more investment as it requires an experienced patent attorney to draft them.  A provisional patent application provides only temporary protection because it only lasts 12 months from the filing date. To keep your protection after the 12 months, you will need to convert the provisional patent application into a complete patent specification. In other words, the provisional patent application provides a way to put one foot in through the door by obtaining a filing date. 

AURIGA IP Expertise 

We have worked with some of the best companies and startups in Singapore on their most critical and complex IP matters. We make use of patents, trademarks, registered designs to safeguard creativity, and devise strategies to carve out and dominate markets through IP. We are committed to providing the best service, solutions and expertise for your IP matters.

Please contact us if you would like to have a free consultation on how we can help you safeguard your IP assets. 

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This article is intended to provide general information only and should not be relied upon as an exhaustive or comprehensive statement of law.  

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