Novelty under the European Patent Convention
Encyclopedia
Under the European Patent Convention
(EPC), European patents shall be granted for invention
s which inter alia
are new
. The central legal provision explaining what this means, i.e. the central legal provision relating to the novelty under the EPC, is . Namely, "an invention can be patented only if it is new. An invention is considered to be new if it does not form part of the state of the art
. The purpose of is to prevent the state of the art being patented again."
When assessing novelty, a generic disclosure (in the state of the art, i.e. for instance in a prior art document) does not normally take away the novelty of any specific example falling within that disclosure. On the other hand, "a specific disclosure does take away the novelty of a generic claim
embracing that disclosure". For instance, the prior disclosure of the subset "vegetables" takes away the novelty of the wider set "fruits and plants". Or, as two other examples,
Furthermore, extends the content of the state of the art by also including "the content of European patent applications as filed, the dates of filing of which are prior to the date referred to in paragraph 2 and which were published on or after that date". The purpose of this notional extension of the state of the art under the European Patent Convention is to address conflicting prior rights which might otherwise, without Article 54(3) EPC, lead to more than one patent granted for the same invention to different inventors. The extension of the definition of the state of the art under Article 54(3) EPC is limited to the assessment of novelty and does not apply to the assessment of inventive step.
European Patent Convention
The Convention on the Grant of European Patents of 5 October 1973, commonly known as the European Patent Convention , is a multilateral treaty instituting the European Patent Organisation and providing an autonomous legal system according to which European patents are granted...
(EPC), European patents shall be granted for invention
Invention
An invention is a novel composition, device, or process. An invention may be derived from a pre-existing model or idea, or it could be independently conceived, in which case it may be a radical breakthrough. In addition, there is cultural invention, which is an innovative set of useful social...
s which inter alia
Inter Alia
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are new
Novelty (patent)
Novelty is a patentability requirement. An invention is not patentable if the claimed subject matter was disclosed before the date of filing, or before the date of priority if a priority is claimed, of the patent application....
. The central legal provision explaining what this means, i.e. the central legal provision relating to the novelty under the EPC, is . Namely, "an invention can be patented only if it is new. An invention is considered to be new if it does not form part of the state of the art
State of the art
The state of the art is the highest level of development, as of a device, technique, or scientific field, achieved at a particular time. It also refers to the level of development reached at any particular time as a result of the latest methodologies employed.- Origin :The earliest use of the term...
. The purpose of is to prevent the state of the art being patented again."
When assessing novelty, a generic disclosure (in the state of the art, i.e. for instance in a prior art document) does not normally take away the novelty of any specific example falling within that disclosure. On the other hand, "a specific disclosure does take away the novelty of a generic claim
Claim (patent)
Patent claims are the part of a patent or patent application that defines the scope of protection granted by the patent. The claims define, in technical terms, the extent of the protection conferred by a patent, or the protection sought in a patent application...
embracing that disclosure". For instance, the prior disclosure of the subset "vegetables" takes away the novelty of the wider set "fruits and plants". Or, as two other examples,
- "a disclosure of copper takes away the novelty of metal as a generic concept, but not the novelty of any metal other than copper, and one of rivets takes away the novelty of fastening means as a generic concept, but not the novelty of any fastening other than rivets."
Definition of the state of the art under Article 54(2) and (3) EPC
Since an invention is considered to be new if it does not form part of the state of the art, the legal notion of "state of the art" is critical for assessing whether an invention is new. In general, under , "[the] state of the art [is] held to comprise everything made available to the public by means of a written or oral description, by use, or in any other way, before the date of filing of the European patent application."Furthermore, extends the content of the state of the art by also including "the content of European patent applications as filed, the dates of filing of which are prior to the date referred to in paragraph 2 and which were published on or after that date". The purpose of this notional extension of the state of the art under the European Patent Convention is to address conflicting prior rights which might otherwise, without Article 54(3) EPC, lead to more than one patent granted for the same invention to different inventors. The extension of the definition of the state of the art under Article 54(3) EPC is limited to the assessment of novelty and does not apply to the assessment of inventive step.