novelty

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The novelty is in many national and supra-national patent laws prescribed requirement for patentability of a technical invention .

term

According to Section 1 of the German Patent Act of 1936, patents are granted for inventions in all fields of technology, provided they are new. Section 3 (1) of the Patent Act stipulates that an invention “counts as new if it does not belong to the state of the art . The state of the art includes all knowledge that was made available to the public by written or oral description, use or in any other way prior to the day relevant for the priority of the application. "This definition includes all knowledge that was acquired prior to the application of the relevant Invention were available to the public in every imaginable way. This can be the case, among other things, through written or oral descriptions, use or exhibition. Examples of written descriptions include books, magazines, and other patents. Oral use includes, for example, a lecture at a conference.

The same applies in accordance with Articles 6 and 8 of the 1968 French Patent Law.

The system is similar in the Patent Cooperation Treaty (PCT) of 1970. For the purposes of the international preliminary examination of whether the claimed invention is to be regarded as new, this applies in accordance with Art. 33 (2) PCT as new if it is not anticipated by the state of the art as described in the Implementing Regulations. Rule 33.1 of the Implementing Regulations understands, under the relevant state of the art for international searches, everything “that has been made available to the public anywhere in the world by means of written disclosure (including drawings and other representations) and what is significant for determining whether the claimed invention is new or not new, and whether or not it involves an inventive step (ie whether it is obvious or not) provided that the time at which it was made available to the public is before the international filing date. "

The legal definition of the state of the art in 54 of the European Patent Convention (EPC) of 1977 also corresponds to the absolute concept of novelty.

details

Relation to the feature of inventive step

The novelty requirement must be distinguished from the inventive step requirement .

An invention applies according to Section 4 sentence 1 PatG as based on an inventive step if it does not result in an obvious way from the state of the art for the skilled person. If there are patent applications not yet publicly available on the filing date within the meaning of Section 3 (2) of the Patent Act, i.e. applications with an older seniority , these do not preclude the assessment as an inventive step (Section 4 sentence 2 of the Patent Act). Patent applications that have already been filed but have not yet been published are, however, detrimental to novelty in order to avoid double patenting.

With this refinement, the novelty criterion solves the conflict of promptly filed patent applications, which, due to a lack of prior publication, cannot be resolved using the inventive step criterion. The result is that the younger application cannot patent anything that is described in the earlier patent application. It should be noted that the priority date may also be relevant for older applications, not the filing date.

Post-published state of the art

In the European examination and objection procedure, according to Art 54 (3) EPC, when assessing whether an invention does not yet belong to the state of the art and is therefore new , the entire content of an already filed but not yet published patent application is used ( whole content approach ). Section 3 (2) of the Patent Act is based on German, European and PCT registrations with effect for Germany.

In the utility model law, on the other hand, only what is the subject of an earlier application is considered ( Section 15 (1) No. 2 GebrMG , prior claims approach ). This wording only involves checking the identity of the protection claims.

Practical relevance

A patent search for the current state of the art, for example in the STN International database , avoids costly duplicate inventions.

literature

  • Dr. Georg Benkard among others: Patent Law, Utility Model Law . 10th edition. Verlag CH Beck, Munich 2006, ISBN 3-406-53954-8 . On §§ 1 and 3 PatG
  • Rainer Schulte (Ed.): Patent Act with European Patent Convention . 10th edition. Carl Heymanns Verlag, Cologne 2017, ISBN 978-3-452-28275-0 . On §§ 1 and 3 PatG
  • Margarete Singer, Dieter Stauder (Eds.): European Patent Convention (EPC) . 10th edition. Carl Heymanns Verlag, Cologne 2010, ISBN 978-3-452-27135-8 . Re Art. 52, 54 EPC
  • Axel Pfeiffer: Property rights in small and medium-sized companies . Carl Heymanns Verlag, Cologne 2007, ISBN 978-3-452-25521-1 . P. 18

Web links

Wiktionary: novelty  - explanations of meanings, word origins, synonyms, translations

Individual evidence

  1. ↑ Patent Act - PatG, date of issue: May 5, 1936. Patent Act in the version published on December 16, 1980 ( Federal Law Gazette I p. 1 ), last amended by Article 4 of the law of October 8, 2017 (Federal Law Gazette I p. 3546) has been changed
  2. ↑ German Patent and Trademark Office : Protection requirements as of August 10, 2019
  3. ↑ Loi n ° 68-1 du 2 janvier 1968 on les brevets d'invention: Sont brevetables les inventions nouvelles impliquant une activité inventive et susceptibles d'application industrial. Une invention is considérée comme nouvelle si elle n'est pas comprise dans l'état de la technique.
  4. ↑ WIPO : Implementing Regulations for the Treaty on International Cooperation in the Field of Patents in the version applicable from July 1, 2019, accessed on September 18, 2019
  5. ↑ European Patent Office : Novelty Guide for applicants: How to get a European patent, last updated: June 29, 2018
  6. ↑ BGH, Judgment of 3 February 2015 - X ZR 76/13 para. 41
  7. ↑ Ansgar Ohly : German and European Patent Law University of Munich 2018, p. 22 ff., 23
  8. ↑ cf. BGH, judgment of September 8, 2015- X ZR 113/13 No. 29, p. 11 f.
  9. ↑ Ansgar Ohly : German and European Patent Law University of Munich 2018, p. 22 ff., 23
  10. ↑ Tobias Wuttke: The German utility model - a weapon? VPP circular 2014, pp. 80–86, 81
  11. ^ FIZ Karlsruhe : The novelty value of an invention: It is well known that the wheel does not have to be reinvented. Retrieved September 21, 2019.