What does it mean when an invention is novel in patent law?

There are three standards that the United States Patent Office will consider before granting a patent on an invention. An invention must be novel, useful, and non-obvious in order to be granted a patent. The invention can’t be prior art, which includes anything known to the public or described in a patent application. If an invention is deemed prior art, the invention cannot be protected by a patent.

The test to see if an invention is obvious was discussed in a prior blog post. You can review that blog post here: What does it mean when an invention is obvious?

Novelty and obviousness are distinct and different requirements but share similar concepts.

An invention must be novel to be granted a patent. This requirement is imposed by 35 United States Code Section 102 which states:

35 U.S.C. 102(a) NOVELTY; PRIOR ART. – A person shall be entitled to a patent unless –
(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention; or
(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.

102(a)(2) essentially says that you cannot be granted a patent on an invention for which someone else has already filed a patent. There are some details to this rule that are very specific to the date that things are filed with the patent office. We will discuss those details in a future blog post.

102(a)(1) essentially says that if the general public knows about the invention then you cannot be granted a patent. There are ways that an inventor can protect an invention and prevent it from becoming prior art. To maintain a novel status and not be considered prior art, an invention must:

Not be shown to any third party, including friends and family.
Remain out of media, including journals, magazines, websites, etc.
Not be considered common knowledge to experts in the field.
Not have gone on sale prior to the patent filing.
Not have been built by a person that abandoned or concealed the idea.

In the United States, there is a one year grace period from the original date of public disclosure of an invention. That means even after you publish or begin selling your invention, you have one year to file for a patent before your invention will loose its novel status. In cases where there has been a public disclosure many inventors file a provisional patent application to protect their invention while they work on filing a normal patent application.

However inventors must be careful, in many European and Asian countries there is no grace period and public disclosure of their invention will prevent them from gaining patent protection.

The requirement that an invention be novel is complex and very fact specific, it is best that you consult with a patent attorney to determine the best way to protect your invention.