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BioPatent Communications

BioPatent  Communications Contact Me for Discussions About Arts, Technology, and Culture (Blog Me/Pod Me).

Is My Invention New?*

Gary L. Baker, Esq. Patent Attorney

BioPatent Communications

PLEASE See a Licensed Professional For Updated Advice Specific to Your IP Situation. 


I. Overview of Novelty and Novelty Searches wpe6.jpg (3577 bytes)

II. Patentable Subject Matter:

        35101 - Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.

  III. An Invention Must Be New to Obtain a Patent. What is New?

U.S. Novelty - See 35102; After March 15, 2013 See AIA 35§102:

A person shall be entitled to a patent unless:

Section 102 contains many more conditions that can disqualify a patent.  See a patent professional to avoid this mine field.

V. The All Claim Limitations Rule

In order for a reference to anticipate an invention, anticipation requires that “all limitations of the claim are found in the reference, or ‘fully met’ by it.” Kalman v. Kimberly-Clark Corp., 218 USPQ 781, 789 (Fed. Cir. 1983).   That is, suppose an older invention only describes a device requiring 4 parts; if your claimed invention has 5 parts (e.g., an additional part improving the old invention), then the older invention does not provide a basis to reject your claim for anticipation under section 102. 

VI.  What are All Limitations of a Claimed Invention?

VII. Anything Published Can Be Old in the Art

Has the invention been previously disclosed to the public (published)?  Many types of public disclosure can be considered publication:wpe4.jpg (3500 bytes)

However, discussions with small groups, informed of invention confidentiality, may not be considered a publication.  There can also be an exception where a public use of the invention was for experimental purposes, e.g., to complete development of the invention.  Experimental use should be well documented in design, execution and analysis.

VIII. Do-It-Yourself Searches wpe3.jpg (1398 bytes)

You can do your own search for prior art to your invention.  Typically, this involves searching the stacks of a library, or key word searches of available databases.   Recommended databases for searching many inventions are listed below:

IX. Paid Searches

X. Opinions Regarding Prior Art wpe2.jpg (3256 bytes)

XI. Dealing With Prior Art

If references are discovered that describe your invention, your claimed invention may lack novelty and have no right to patent protection.  If the reference is an active (enforceable) patent, you may be subject to an infringement law suit if you practice the invention, even if you did not know the patent existed. 

XII. Conclusion

An invention can be considered novel if there are no publicly available reference describing the invention.  A novelty search can discover prior art references to consider in determining the fair scope of an invention or to evaluate the validity of an issued patent claim. 

BioPatent  Communications

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*Educational comments not intended to be relied on in your specific case.  See a Patent Professional for advice tailored to your situation.

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