The Three Tests for Patentability (Simplied Version)
NOVELTY – In order to have novelty, the invention must not have been disclosed publicly anywhere in the world. The novelty of an invention is lost on a first sale. Only two countries in the World give the inventor a grace period of 12 months to file a patent application after the novelty of the invention has been lost. These countries are Canada and USA. All other countries require absolute novelty. Some countries do not even allow “secret use” of the invention before the filing date.
UTILITY – A patentable invention must have commercial utility. The invention must be related to a field of technology; “the branch of knowledge dealing with engineering or applied sciences”. The invention must be more than a mere scientific principle or an abstract theorem. The invention must have a practical or practicable form. The invention must have one or more physical elements.
INVENTIVENESS – The biggest test of all is perhaps the test of inventiveness. The question to be asked is whether or not there is teaching, suggestion, or motivation in the prior art that could have led a person of “ordinary skills” and “ordinary creativity” to modify or to combine the teachings in the prior art to arrive at the claimed invention. The test goes further by asking whether the claimed subject-matter is obvious because the route to the invention, ( the inventor’s approach), would have been “obvious to try”. Ref: (KSR Int. v. Teleflex Inc. USA 2007) and (Apotex Inc. v. Sanofi-Synthelabo Canada, Inc. 2009.)
Inventiveness also means that the invention has a new and unexpected result. A patentable combination gives a result which is more than the sum of the individual elements.