Novelty and Section 102

1
Novelty and Section 102

• Has enough of the invention been disclosed to
  enable a person skilled in the applicable art to
  duplicate the product or process?

2
Sources of Novelty Law
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Focus on Anticipation

• Implicit in Section 102 is the term of art
  anticipation
• The subject matter of a patent can be anticipated
  by prior art and, therefore, anticipation events
  will defeat a claim of novelty if they occur
  anytime prior to invention
• Section 102 novelty provision defines
  anticipation according to events

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Event of Anticipation and Section 102(a)

• Prior patent by anyone
• Printed Publication
• Knowledge by others
• Unabandoned, unsuppressed, or unconcealed
  inventions by others
• Use by others
• Description in anothers previously filed and
  eventually granted application

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Limits on Lack of Novelty

• The anticipation event must be so substantially
  the same as the subject matter of the invention
  as to accomplish the disclosure purpose of the
  patent law.
• To assert lack of novelty, anticipation must
  encompass the claimed invention.

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Standard or Test for Lack of Novelty

• General Rule An invention will lack novelty if
  enough of the invention has been disclosed
  (anticipation) to enable a person skilled in the
  applicable art to duplicate the product or the
  process.
• Anticipation need not be identical, rather the
  test is substantially identical.
• Anticipation must be realized and capable of
  duplication, not unconscious or accidental

7
Statutory Bars Defeating Patentability and
Section 102(b)

• Publicity
• Public Use
• Exception Experimental Use as a defense to
  public use and on sale bars

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Questions Raised by Section 102

• In analyzing novelty, why must we rely on events
  other than knowledge to signify anticipation?
• What does Section 102(a) known mean?
• Is the definition of knowledge, i.e., accessible
  to the public, truly at odds with the terms
  publication or public use in 102(b)?