Prior Art
November 29, 2022
Biswajit Sarkar - IP Law Firm India
Post time: 4:17 pm
Introduction
As stated in the previous blog on Patentability in India, Novelty is one of the essential criteria required for a patent to be granted in India. Novelty means that the invention must be new or novel and must not have been anticipated by any published document in the world. In order to prove novelty, it must be proved that no other document in the world has any prior claim relating to the subject matter of the invention. Thus, an invention is new or novel, if it has not been disclosed in the prior art.
Prior Art
Before the application for a patent is filed, a prior art search is of paramount importance. It will help determine the existing literature regarding the subject matter of the patent and help establish the novelty of the invention.
In India, Section 2(1) (l) of the Act defines “new invention” as ‘any invention or technology which has not been anticipated by publication in any document or used in the country or elsewhere in the world before the date of filing of patent application with complete specification, i.e., the subject matter has not fallen in public domain or that it does not form part of the state of the art.’
The novelty is always determined with reference to a single prior art document. This means that all the claims/features of the invention must be present in a single document in such a manner that each novel element of the claims is disclosed in the prior art document. Multiple documents cannot be combined to determine the novelty of the invention.
(a) Prior Publication [Section 29(1), the Act]
An invention shall not be considered to be novel if it has been anticipated by publication before the date of filing of the application in any of the specification filed in pursuance of application for patent in India on or after the 1st day of January 1912.
(b) An invention shall not be considered to be novel if it has been anticipated by publication made before the date of filing or the date of priority of the application in any of the documents in any country.
(c)An invention shall not be considered to be novel if it has been claimed in any claim of any other complete specification filed in India, which is filed before the application but published after said application. [Section 13(1)(b), the Act]
Conclusion
In India, the novelty of the invention must be absolute in nature. This means that it must not have been published in India or anywhere else in the world, in accordance with Section 2(1)(l) of the Act [new invention]. The traditional knowledge in India is also considered prior art.
