Novelty

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2.-(1) An invention shall be taken to be new if it does not form part of the state of the art.

(2) The state of the art in the case of an invention shall be taken to comprise all matter (whether a product, a process, information about either, or anything else) which has at any time before the priority date of that invention been made available to the public (whether in the United Kingdom or elsewhere) by written or oral description, by use or in any other way.

(3) The state of the art in the case of an invention to which an application for a patent or a patent relates shall be taken also to comprise matter contained in an application for another patent[1], which was published on or after the priority date of that invention, if the following conditions are satisfied, that is to say -
  • (a) that matter was contained in the application for that other patent both as filed and as published; and
  • (b) the priority date of that matter is earlier than that of the invention.


(4) For the purposes of this section the disclosure of matter constituting an invention shall be disregarded in the case of a patent or an application for a patent if occurring later than the beginning of the period of six months immediately preceding the date of filing the application for the patent and either -
  • (a) the disclosure was due to, or made in consequence of, the matter having been obtained unlawfully or in breach of confidence by any person -
    • (i) from the inventor or from any other person to whom the matter was made available in confidence by the inventor or who obtained it from the inventor because he or the inventor believed that he was entitled to obtain it; or
    • (ii) from any other person to whom the matter was made available in confidence by any person mentioned in sub-paragraph (i) above or in this sub-paragraph or who obtained it from any person so mentioned because he or the person from whom he obtained it believed that he was entitled to obtain it;
  • (b) the disclosure was made in breach of confidence by any person who obtained the matter in confidence from the inventor or from any other person to whom it was made available, or who obtained it, from the inventor; or
  • (c) the disclosure was due to, or made in consequence of the inventor displaying the invention at an international exhibition and the applicant states, on filing the application, that the invention has been so displayed and also, within the prescribed period, files written evidence in support of the statement complying with any prescribed conditions. [Rule 5: inform and file certificate within 4 months of filing]

(5) In this section references to the inventor include references to any proprietor of the invention for the time being.

(6) [deleted]

Notes:
Manual of Patent Practice

Subsection (6) deleted by Schedule 2 of the Patents Act 2004, as commenced by the Patents Act 2004 (Commencement No. 4 and Transitional Provisions) Order 2007 SI 2007 No. 3396, from 13 December 2007. The subsection is effectively moved to new section 4A.

For anticipation, an enabling disclosure is required. Summary of case law in Synthon v Smithkline Beecham [2005] UKHL 59 (20 October 2005), at paras 20-25 (disclosure) and 26-27 (enablement).

For s2(4) to apply, a prima facie case must be established that s2(4)(i) or (ii) applies. Statements of truth should be supplied. Disclosure must be within 6 months of UK filing date, and cannot be backdated to priority date, if earlier.
  1. ^ For European applications, Section 78(5A) provides that removal of a UK designation before publication does not prevent subject matter becoming part of the state of the art by virtue of section 2(3). Every European patent application which was filed on or after 13 December 2007 will therefore enter the state of the art by virtue of section 2(3) once it is published. For European patent applications filed before 13 December 2007, removal of the UK designation before publication will continue to prevent the matter contained in those applications from forming part of the state of the art by virtue of section 2(3).