Introduction

Novelty means the newness of the information that is generally unused or unknown and that gives its owner a competitive advantage in a business field.[1] It is considered as the “sweet spot” to assess the patentability of an invention. Novelty criteria in case of publication of an invention actually means new when compared to prior art.

As a general principal an invention is new (novel) if it has not been anticipated by publication in any document anywhere in the world or used in the country or prior claimed in an application for patent in India or form part of the knowledge, oral or otherwise, available within any local or indigenous community in India or elsewhere before the date of filing of patent application or date of priority, that is, the subject matter has not fallen in the public domain or that it does not form part of the state of the art.[2]

Determination of Novelty

In order to prove that the patented invention consists of novelty it is utmost necessary to prove that it does not fall under the “state of the art”. The Indian Patent Act however, does not define “state of the art” but as illustrated from various case laws state of the art means if the prior inventor's publication contains a clear description of, or clear instructions to do or make, something that would infringe the patentee's claim if carried out after the grant of the patentee's patent, the patentee's claim will have been shown to lack the necessary novelty, that is to say, it will have been anticipated.[3]

In simple layman terms the invention should not be copied from anything earlier known to the public, it should be genuine which would give a clear idea about the invention. There should be no prior use of the invention[4] or mere discovery of the known invention.

Conclusion

As stated in order for an invention to be patentable it should be necessary that the invention should not fall under prior art which should be known to the public and should not be anticipated however, the Public user does not mean a user by the public but a user in a public manner. Therefore, it is imperative that the patent application should be filed ideally before disclosing it in the public domain. As Dr R.A. Mashelkar, India’s foremost scientist, rightly pointed out that ‘publish or perish’ or ‘patent, publish, and prosper’.