Novelty

Novelty is the first condition of patentability. An invention is considered new if it does not form part of the state of the art, that is, everything made available to the public before the filing date of the application or the priority date, by means of a written or oral description, by use or in any other way. The rule is set out in Article L. 611-11 of the French Intellectual Property Code and in Article 54 of the European Patent Convention. Novelty is assessed in absolute terms, without limitation of time, place or language.

Assessing novelty

First, novelty is destroyed by a single anticipating disclosure, that is, a single document or use that discloses the invention in the same elements, in the same form, with the same arrangement and the same operation, for the same result. Next, several items of prior art may not be combined to establish lack of novelty, since such a combination falls under inventive step. Finally, the content of earlier patent applications not yet published at the filing date is taken into account for novelty only. The provisions are available on Légifrance.

Disclosure by the inventor

Disclosure of the invention by the inventor himself destroys novelty, save in two limited cases: where it results from an evident abuse in relation to the applicant, and where it took place at an official exhibition within the six months preceding the filing. Unlike other systems, European law has no general grace period. Consequently, any presentation to customers, scientific publication or placing on the market before filing must be preceded by a confidentiality agreement or by a patent application.

Key takeaways

In practice, lack of novelty is a classic ground for revocation of the patent, raised in response to an infringement action. Searching for it draws on patent databases, scientific literature and evidence of prior use, such as catalogues, product leaflets or marketed products. The firm conducts these analyses together with patent attorneys and argues validity before the Paris judicial court and the UPC, as presented on the page patent revocation action.