The patent system was conceived to reward the inventor for contributions to the pool of existing knowledge. The criteria used to define what is new are key determinants of the scope of possible limitations to the free access and use of technical knowledge and products in the public domain. The stricter the novelty and other requirements, the smaller the number of applications that will lead to a patent grant.
The test of novelty considers how much distance separates one claimed invention from prior art. It applies before the existence of inventive step is considered (see Section IV.2, below).
The novelty requirement in modern patent laws is generally based on an assessment of the prior art on a universal basis, that is, anywhere in the world. Generally, novelty is destroyed by previous written publication, prior use or other form of public communication of the invention.
Within this framework, the legal definition and application of the novelty requirement significantly differs among countries.
In some jurisdictions a flexible standard is applied, thus permitting the granting of a great number of patents. For instance, in the United States, disclosure that has taken place outside the United States is only destructive of novelty when made in a written form83.
83 This may permit the patenting in that country of knowledge, including of indigenous communities, used but not published in written form outside United States. See, e.g., Correa, 1999a.
National legislation and practice differ on numerous other important questions:
• The United States, for instance, requires complete disclosure in a single publication to destroy novelty, despite the fact that a skilled person may have been able to derive the invention without effort from a combination of publications.
• In some cases, disclosure may not have been made expressis verbis in a prior writing, but may be implicit therein. If a “photographic” approach to novelty (i.e. only based on explicitly disclosed information) is applied, equivalents to an invention implicitly disclosed in the prior art may not be sufficient to deny patentability. The result, in these instances, can be the patenting of pieces of existing knowledge (prior art). This result can be avoided by following the European patent office’s practice of considering implicit teachings to be disclosed and part of prior art84.
• Another aspect left to national legislation is to establish whether novelty would only be destroyed when the anticipation enabled the execution of the invention, or whether a mere disclosure of the prior art would be sufficient - for instance, where a compound was made and tested even if a clear description of its properties or a method of making it were not available85.
84 See, e.g., Hansen and Hirsch, 1997, p. 96.
85 This was the approach adopted by the UK Patent law of 1977. See, e.g., Cook, Doyle and Jabbari, 1991, p. 79.