![]() For example, a journal article available on the internet for a fee would constitute prior art as long as it was made available before the priority date of the claimed invention. For documents to be considered to form part of the prior art base, the document does not need to be accessible without cost. The disclosure of the document should be construed as it would have been read by a person at the date of publication of the document SmithKline Beecham Plc v Apotex Europe FSR 23.Ĩ. Employees were deemed to be under an obligation of confidentiality in J Lucas (Batteries) Ltd v Gaedor Ltd RPC 297.ħ. On the other hand, if the disclosure was made to a person who knew that the invention was confidential, then this may be considered secret use and would not form part of the prior art base and cannot be used as anticipation. Communication to a single member of the public without inhibition was considered to be sufficient to amount to making the material available to the public.Ħ. The definition of "made available to the public" was determined in Bristol Myers RPC 146 to be whether the document was communicated to a member of the public who was then free to do what they wished with it. Examples of non-written disclosures include sound recordings, videos, and public use (such as demonstrations, displays and trial samples of a product).ĥ. The prior art base also includes non-written disclosures such as use and oral disclosure. This is a change from the Patents Act 1953, section 59(1)(a) & (b) which placed a 50 year time limit on patent specifications which may be used to anticipate a later claimed invention.Ĥ. There is no time limit on the age of the matter which may be considered as prior art. The majority of the prior art will be written disclosures in books, journals and patent specifications. The date of publication or date of alleged prior use must be earlier than the priority date of the claimed invention to be citable as a prior publication or use.ģ. Novelty is assessed strictly as at the date of publication of the document which is purported to be novelty destroying, or the date of the alleged prior use Yeda Research & Development Company v Rhone-Poulenc Rorer UKHL 43. ![]() The prior art base includes all matter including products, use, information about a product or process or 'anything else' made available by written or oral description, by use, or in any other way at any time, anywhere and in any language. ![]() Where it appears that a combination of more than one document would anticipate a claimed invention, then it is possible that these documents could be combined to find a lack of inventiveness i.e. A mosaic of more than one document to find lack of novelty is not permissible, see for example British Ore Concentration Syndicate v Mineral Separation Ltd, 26 RPC 124 at page 147, and Lowndes’ Patent 45 RPC 48 at page 57. Assessment of novelty of a claimed invention is based on whether all of the features of that claim are known from a single prior art document, see for example Ammonia’s Application, 49 RPC 409. For an invention to be patentable it must be novel over what is already known from the prior art base. (c) the information was contained in that complete specification on its filing date and when it became open to public inspection.Ĭompare: Patents Act 1977 s 2(2) (UK) Prior art base – generalġ. ![]() ![]() (b) that complete specification became open to public inspection after the priority date of the claim under consideration and (a) if the information is, or were to be, the subject of a claim of that complete specification, the claim has, or would have, a priority date earlier than that of the claim under consideration and (2) For the purpose of deciding whether or not an invention is novel, the prior art base, in relation to an invention so far as claimed in a claim, also includes the information contained in a complete specification filed in respect of another patent application if all of the following circumstances apply: (1) For the purpose of deciding whether or not an invention is novel and for the purpose of deciding whether or not an invention involves an inventive step, the prior art base, in relation to an invention so far as claimed in a claim, means all matter (whether a product, a process, information about a product or process, or anything else) that has at any time before the priority date of that claim been made available to the public (whether in New Zealand or elsewhere) by written or oral description, by use, or in any other way. ![]()
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