Absolute novelty requires the invention to be new (i.e., novelty) in relation to all publicly available information prior to the filing date of a patent application to get a patent. In contrast, relative novelty relaxes the absolute novelty requirement. Even if an invention is not absolutely new on the filing date of a patent application, the invention can still be patented in certain circumstances.
Does the United States require absolute novelty or relative novelty for an inventor to obtain a patent?
The United States only requires relative novelty for an inventor to obtain a patent. The inventor can put the invention out in the public purview before filing a patent application.
For example, the USPTO will not prohibit the inventor from obtaining a patent in the following circumstances:
The inventor has already:
- made an offer for sale of the invention,
- created and published a website (i.e., printed publication), or
- publicly demonstrated the invention at a trade show before filing a patent application.
These public activities put the invention out in the public but yet do not disqualify the invention from being granted a patent. Nothing that the inventor does for up to one year (i.e., a one-year grace period) disqualifies the inventor from getting a patent on the invention.
On the day the inventor files an application, the invention was not absolutely novel. It was only relatively novel since the inventor him or herself had made the invention publicly available prior to the filing of the patent application. Nevertheless, in a relative novelty country like the United States, the invention can still be patented.
However, if such activities were performed by someone other than the inventor, the inventor would no longer be able to get a patent on the invention. The public activities of others become prior art to the inventor.
What types of public activities can an inventor engage in yet still meet the relative novelty requirement?
In the United States, the inventor can market the invention before filing a patent application and will not be disqualified from obtaining a patent on the invention. For example, the inventor can:
- offer the invention or product incorporating the invention for sale to the public,
- create a printed publication (e.g., website), and
- do a public demonstration of how the invention works, such as added trade show.
The inventor can engage in these 3 types of public activities and they don’t disqualify the inventor from getting a patent on the invention.
However, you need to be aware that if others see the inventor’s public activities and post their own information about the invention, the public information that others create becomes prior art against the inventor’s later-filed application.
How long can an inventor publicly market their invention?
In the United States, inventors can publicly market their inventions for up to one year. The invention will still be considered new for patenting purposes so long as the inventor files an application within that one-year time frame. If the inventor waits more than one year from the first offer for sale, printed publication, or public demonstration, the public activities of the inventor for more than one year become prior art against their own patent application. They cannot seek patent protection for their invention at that point.
Does secret information destroy absolute novelty or relative novelty?
In the United States, secret information in and of itself does not destroy relative novelty. However, secretly commercializing an invention destroys relative novelty. An inventor that uses their idea secretly and makes money from it cannot seek patent protection later on.
The United States wants inventors to choose between trade secret protection or patent protection for their ideas. They don’t want inventors to initially protect their ideas with trade secret protection, and later on, protect their ideas with a patent if they find that trade secret protection is suitable. The United States government wants inventors to choose how to protect their ideas – trade secret protection or patent protection.
Which countries require absolute novelty and relative novelty countries?
The following countries are generally considered absolute novelty countries:
- Europe, and
The following countries are generally considered relative novelty countries:
- United States,
- Argentina, and
Although countries are classified as absolute novelty countries and relative novelty countries, each country varies as to the degree to which an invention must be absolutely novel or relatively novel. For example, Japan allows inventors to file a patent application within six months after a printed publication. Other countries do not. Europe allows inventors to file a patent application even if the product incorporating the invention was made public so long as the public was unable to decipher how the invention worked from the publicly available information.
As such, if you’re considering filing a patent application and have already made your invention publicly available, you should check with a patent attorney to see if you can still file a patent application.