When
filing a patent, it is important to remember that
if the patent is not filed timely, the inventor will
forever forfeit their patent rights. Patent protection
in the U.S. is provided by federal law through the
United States Patent and Trademark Office (USPTO)
and gives a patent owner the right to exclude others
from making, using, selling, distributing or importing
the patented invention for a certain period of time.
Only certain things may be patented, and there are
several requirements that an invention must meet in
order to be eligible for patent protection. One of
the most basic requirements is novelty, or newness.
The purpose of the novelty requirement is to prevent
the patenting of inventions that have become widely
known and used, which are said to have entered the
public domain, and to carry out the general principle
that only the first person to create an invention
is entitled to patent it.
Definition of Novelty
In order to be novel, an invention cannot have been
previously patented, described in a printed publication
or used or known by others prior to its invention
by the patent applicant. To be known by others, a
patent must have been fully disclosed and the disclosure
must be accessible to the public in the United States.
Only minimal use of an invention by others is necessary
to disqualify patent eligibility as long as the use
is accessible to the public. Experimental use by the
inventor to test the invention is not a use that will
automatically disqualify the invention from patent
eligibility. Printed publication of a description
constitutes accessible disclosure of the invention
if the publication is distributed or is filed in such
a way that a member of the public could find it by
exercising reasonable diligence.
Additional provisions of patent law prevent an inventor
from obtaining a patent if another inventor had taken
steps to patent the invention that resulted in the
public disclosure of the invention or if another person
invented the item before the patent applicant and
did not abandon, suppress, or conceal the invention
before the patent applicant invented the item. These
provisions generally protect the rights of an earlier
inventor against a later inventor.
In order to determine whether an invention meets the
novelty requirement, the U.S. Patent and Trademark
Office will search through existing patents and other
literature in the field in which the invention is
classified to see if the invention has been patented
or described in a way that discloses it to the public.
The body of information that will reveal whether an
invention to be patented meets the novelty requirement
is referred to as the "prior art." If the
prior art indicates that the invention to be patented
has already been patented or described publically,
the invention for which a patent is sought is said
to have been "anticipated," and it will
not be eligible for a patent. Inventors may conduct
searches prior to applying for a patent, and, in fact,
this kind of search is usually encouraged in order
to avoid the unnecessary expense of time and money
in applying for a patent that may be anticipated by
the prior art.