Outline of novelty of invention
The novelty of an invention means the objective novelty of the invention, and specifically, it does not fall under each item of Article 29, Paragraph 1 of the Patent Act.
The law stipulates that patent rights, which are exclusive rights, will be granted in exchange for the publication of new inventions in order to promote the development of industry through the cumulative progress of technology by making the invention publicly available rather than keeping it secret. Therefore, not only does an invention that has already been published have no protective value, but if an exclusive right is given to an invention that has become a common property of such a society, it will hinder corporate activities. It is a patent requirement (Patent Law, Article 29, Paragraph 1).
Article 29 of the Patent Law
A person who has made an invention that can be used industrially can obtain a patent for the invention except for the following inventions.
1 .Inventions publicly known in Japan or abroad before filing a patent application
2 .Inventions that were publicly implemented in Japan or abroad before filing a patent application
3. Inventions described in distributed publications or inventions that have become publicly available through telecommunication lines in Japan or abroad before filing a patent application.
Timing and geographical criteria for novelty judgment
Based on the time of filing (Patent Law, Article 29, Paragraph 1, Items).
It will be a problem until the time of application.
Not only in Japan, but also in foreign publicly known documents.
Objective criteria for novelty
(1) Publicly known invention (Patent Law, Article 29, Paragraph 1, Item 1)
"Openly" means that the secret has been removed, and "publicly known" means that it has been known to an unspecified person who does not have a duty of confidentiality.
Even if a specific person who has a duty of confidentiality knows the invention, the novelty of the invention is not lost, but if even one unspecified person knows the invention, the novelty of the invention is lost.
"Known" is understood to mean that the invention is actually known and technically understood.
The novelty of an invention will not be lost if the invention that is characteristic of the inside of the machine is shown only to the outside, or if the invention is shown only to infants who do not understand the content of the invention.
(2) Publicly implemented invention (Patent Law, Article 29, Paragraph 1, Item 2)
"Publicly implemented" means implementation in publicly known or potentially known situations.
When the mode of use of the invention is "use", the novelty is not lost unless the content of the invention is used in a state where it can be publicly known.
In the case of "assignment", the content of the invention can be known by disassembling, etc., so it is considered that novelty will be lost unless there are special circumstances.
In the case of "lending", it is considered that disassembly is often prohibited, so it is considered that novelty is not lost in many cases.
(3) Inventions described in distributed publications or inventions that have become available to the public through telecommunication lines (Patent Law, Article 29, Paragraph 1, Item 3)
"Distribution" means that the publication is in a state where it can be seen by an unspecified person.
You don't need the fact that someone actually saw the publication.
"Publication" means a copy of a document, drawing or similar information transmission medium for the purpose of making it available to the public for distribution.
Therefore, limited publications, publications not for sale, and copies of application specifications are all publications because they are open, informative, and distributable.
However, secret publications are not classified as publications because they are not open to the public and the original specification of the application is understood to be non-distributable.
The "described invention" means an invention that can be grasped from the matters described in the publication and the matters equivalent to those described.
Here, "matters equivalent to those described" are those that can be derived from the matters described by taking into consideration the common general technical knowledge at the time of distribution of the publication.
"Inventions made available to the public through telecommunication lines" are inventions uploaded on the Internet.
Exception to loss of novelty
If the invention meets the requirements such as publication by itself, and if a patent application is filed under the provisions of the exception of loss of novelty within one year from the date of publication of the invention, the novelty of the invention will be lost. It will be judged as not done.
Case law of novelty
December 25, 2000 Tokyo High Court
Even if the content of the invention is known to a person who has a relationship to keep secret for the inventor, it does not fall under the "publicly known" referred to in Article 29, Paragraph 1, Item 1 of the Patent Act, but this inventor The relationship that should be kept secret for the sake of It should be said that even if there was no explicit instruction or request, it was implicitly required and expected to be treated as confidential.
If confidentiality is implicitly required and expected, it will not be "publicly known" and the novelty of the invention will not be lost.
February 10, 2005 Tokyo District Court
Since the patent system grants monopoly rights to the new technological ideas in exchange for disclosure to society, it is necessary to grant monopoly rights to already socially known technical means. And, granting exclusivity to such technological means may rather hinder the development of free technology.
This is the reason why the Patent Law stipulates that patents cannot be obtained for the inventions prescribed in each item of Article 29, Paragraph 1 of the same law. Then, the "public implementation" in item 2 of the same paragraph requires that the content of the invention can be known by implementing it in front of an unspecified number of people, and it is simply the implementation of the invention. It is reasonable to understand that the existence of a product does not hinder the acquisition of a patent.
In this case, if the invention is an invention of a product, the product of the invention is in a state capable of being analyzed to the extent that a person skilled in the art can completely reproduce the product. Is not necessary, but by analyzing the product of the invention using an analytical technique available to those skilled in the art, it is possible to determine whether or not the product falls under the claims. It is reasonable to understand that it is necessary.
When the product of the invention is sold in the market, it should be normal to analyze the product to know its composition or composition unless there are special circumstances.
The mere existence of the product of the invention does not mean that it will be publicly implemented, and the novelty of the invention will not be lost.
July 4, 1980 Supreme Court Second Small Court
Case: It was argued whether MIT's master's thesis could be said to have been "listed in a distributed publication" in a foreign country prior to the patent application referred to in Article 29, Paragraph 1, Item 3 of the Patent Act.
The distributed publication referred to in Article 29, Paragraph 1, Item 3 of the Patent Act is a document, drawing, or other similar information transmission medium that is reproduced for the purpose of being disclosed to the public by distribution. It can be said that what can be said to be reproduced here for the purpose of distribution to the public is equivalent to being able to meet the public's request in advance in anticipation of public viewing. It is not necessary to limit the number of copies to those that are duplicated from the original and widely provided to the public, but the right original itself is open to the public for free viewing by the public, and a copy thereof. If the product is ready to be delivered without delay in response to the request from the public, it is okay to wait for the request from the public and copy and deliver it from the original each time. Is considerable.
Even if a considerable number of copies are duplicated from the original and not widely provided to the public, they will be made public and available for free viewing by the public, and the copies will be delivered without delay in response to requests from the public. If the system is in place, it falls under the category of "invention described in the distributed publication" and loses its novelty.
The examiner compared whether or not the claimed invention has novelty with the claimed invention and the prior art (cited invention) cited for determining novelty and progress. As a result, it is determined whether or not there is a difference between the claimed invention and the cited invention.
If there are any differences, the examiner determines that the claimed invention has novelty.
If there are no differences, the examiner determines that the claimed invention is not novel.
If there are two or more claims in the scope of claims, the examiner determines whether or not there is novelty for each claim.