On The Patent Novelty

The philosophical theory justifies the patentee's monopoly over hisinvention is Contract Theory, which emphasizes that only the inventionsthat can promote the public interests deserve the patent monopoly. TheContract Theory also implies that the main object of the patent law is thepromotion of learning. The progress in technology or learning isencouraged to add more materials to human knowledge. So only the"new" learning can be granted with patent. In the other words, novelty isindispensable for a patent application to gain patent protection. Tomaximize the welfare of human beings is the essence of the Utilitarianismand is also the prevailing aim of the patent system.The novelty of the patent is not a single definition but a series ofcomplicated and inter-related definitions. To decide whether a patentapplication is novel, it shall be compared with the prior art which meansthe existing learning and technologies. If the application falls within priorart, the application lacks of novelty;if not, the application qualifies thenovelty requirement;To define the prior art, we have to specify somestandards to set boundaries for it: the time standard tells us the exact timewhen the existing learning accounts for the prior art;the territorialstandard define the territory within which the existing learning accountsfor the prior art;the conflicting applications are two applications with thesame subject, and the earlier application would be given priority when thepatent officers considering the grant of the patent;Generally speaking,the inventions which is available for the general public lack of novelty,but the grace period set a time limit for the published inventions. If theinventor file his application within this time limit, the publishedinvention can still be considered as novel;In order to clearly articulate thenovelty of patent, this paper also resort to other important conceptionswhich are too long to be listed here.On the basis of in-depth analysis, this paper also brings forwardsome advice concerning the patent novelty for the forth-coming thirdamendment of the Patent Law of China.