Patentability Requirements
What is meant by the requirement of Novelty?
One important requirement for an invention to be patentable is that it is novel. “Novel” means that the invention has not been made public before the filing date. For the European patent office this essentially means that it has not been made available through either a written or an oral disclosure, or in any other way to a third party which was not bound by a confidentiality agreement.
Novelty is thus assessed based on the “prior art”. The prior art includes all publicly accessible knowledge and publications that were available before the day of the filing. This encompasses both scientific and patent literature and any types of disclosures from a publication in a local paper to a blog on the internet. The language of the prior art is not relevant. For example, if the invention was described in a Korean or Japanese article in a local newspaper published before the filing date of the patent application, this is considered valid prior art. If such prior art is identified by the patent offices, it can compromise the patentability of the invention. The number of copies of a publication also does not affect the prior art value of a document – there may be a single copy available for public inspection, or limitless copies published on the Internet. In both situations, if the invention is described therein, it will be considered novelty-destroying.
In some countries a grace period is available.
What is meant by the requirement of Inventive Step?
In order to be patentable, a finding should not only be novel but also involve an inventive step. Generally speaking this means that 'with respect to the prior art, the finding would not be obvious for the person skilled in the art'.
While the test of novelty is often fairly straightforward, the assessment of inventive step may be more difficult. The European patent office has developed the “problem-solution approach” to determine inventive step. Basically this involves determining which problem is addressed by the invention and whether a person in the technical field at the time of filing would be directly pointed to the solution offered by the invention, based on the information available to him from the prior art.
What is the requirement of industrial applicability?
A further requirement of patentability is that the invention has industrial applicability. An invention is usually industrially applicable when it can find an application or manufacture in trade or industry including agriculture at the time of filing.
As in most cases the interest of the applicant in the invention implies a potential commercial application, this requirement is often met. However, in the field of biotechnology, this requirement is also used by the European Patent Office to assess whether in fact the invention is at a stage that its industrial application can be immediately recognized. For instance, DNA sequences which are only described as such and for which no function is plausibly demonstrated, are not considered patentable based on lack of industrial applicability.