A product or process will be considered as an invention under the Patents Act only if it is novel and inventive. Novelty simply means newness based on what is existing as of the priority date of the patent application. An invention will be considered to be novel if it is different from what is already existing, which is referred to as ‘prior art.’ Novelty is always assessed in the light of a single prior art reference at a time, and prior art references are not combined for novelty analysis. Having said that, general knowledge of the art not expressly provided in a prior art reference may be read into the reference.

Novelty has not been defined under the Patents Act and is provided under different sections pertaining to examination, anticipation, opposition, and revocation. For purposes of novelty as well as inventive step analysis, the prior art includes the following:

  1. Prior patents relating to the invention, which include patent applications and granted patents in India, whose priority date precedes that of the patent application;
  2. Prior Publications relating to the invention, which include any document published before the priority date of the patent application;

iii. Prior commercial working of the product or process in India before the priority date of the patent application; 

  1. Prior communication of the product or process to the Government before the priority date of the patent application;
  2. Prior display of the product in an exhibition before the priority date of the patent application; vi. Prior public working of the invention in India, before the priority date of the patent application; and

vii. Prior use of the invention in India before the priority date of the patent application. 

Prior publication and prior patent filing will not negate the novelty of an invention if the publication or filing was based on wrongful obtainment, or in contravention of the rights of the inventor or applicant. Public display in a Government recognized exhibition will also not negate the novelty of the invention. Also, a prior publication of the invention before a learned society will not amount to the prior art for a period of twelve (12) months from the date of the said publication.

A grace period of twelve (12) months is also available for prior public working, which amounts to a reasonable trial.

For a prior art reference to negate the novelty of an invention, it must anticipate all elements of the invention. A single prior art reference must possess all elements expressly or inherently. Even if one element is missing the prior art will not anticipate the invention and negate its novelty. Relatively, the novelty requirement is more objective than the next requirement, which is an inventive step.

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