Strict Novelty vs. Relative Novelty in Patent Law: Understanding the Key Differences

Patent law is fundamentally based on the principle of novelty, which ensures that only new and inventive ideas are granted patent protection. However, how novelty is assessed can differ between jurisdictions. In this article, we will explore two distinct approaches to novelty in patent law: strict novelty and relative novelty, and understand the implications of each for inventors seeking patent protection.

What is Strict Novelty?

Strict novelty is a patent requirement where an invention is considered novel only if no prior disclosure of the invention exists, anywhere in the world, before the filing date of the patent application. Under a strict novelty system, the invention must be entirely new, and the invention’s novelty is assessed against any prior public disclosure regardless of its location or the identity of the person who disclosed it.

In a strict novelty regime, any prior art (whether published in the same country or abroad) that discloses the invention in full will destroy the novelty of the invention and, therefore, prevent the granting of a patent.

Key Features of Strict Novelty:

Worldwide Prior Art: The novelty of the invention is assessed against prior art that is available globally.

No Grace Period: Any public disclosure, whether by the inventor or someone else, can destroy the novelty of the invention. There is generally no grace period allowed for disclosures made by the inventor.

Global Examination: A patent application is invalid if the invention has been disclosed anywhere in the world, regardless of when or where the disclosure occurred.

Example of Strict Novelty:

Suppose an inventor publishes an article on their invention in a journal in January 2024. If they then file a patent application in June 2024, the publication can be used as prior art against their application. As a result, if the published article discloses the invention in full, the inventor will not be able to obtain a patent for the same invention, even though the disclosure was made prior to the filing date.

What is Relative Novelty?

In contrast to strict novelty, relative novelty (also known as non-strict novelty) takes a more flexible approach to assessing novelty. Under this system, the invention is considered novel even if it has been disclosed publicly before the filing date of the patent application, as long as the disclosure meets certain conditions, such as being within a grace period or occurring in a specific jurisdiction.

Relative novelty often allows for a grace period — a window of time after the public disclosure within which the inventor can still file for a patent, even if their invention has been disclosed. This grace period allows inventors time to assess the commercial viability of their invention or to file a patent without losing their novelty status due to an early public disclosure.

Key Features of Relative Novelty:

Grace Period: Inventors are often allowed a grace period (usually 6 to 12 months) after publicly disclosing their invention to still file for a patent without losing novelty.

Jurisdiction-Specific: The novelty is assessed based on the jurisdiction where the patent application is filed. Prior art disclosed in another jurisdiction may not count against the novelty of the invention.

Inventor's Disclosure: The grace period generally applies only to disclosures made by the inventor themselves or with their consent.

Example of Relative Novelty:

An inventor presents their invention at a conference in January 2024. Under the U.S. patent law (which follows a relative novelty approach), they can still file a patent application until January 2025 (i.e., within 12 months of the disclosure) without losing their novelty, even though their invention was publicly disclosed. This grace period allows the inventor time to file a patent application without being penalized for their own disclosure.

Key Differences Between Strict and Relative Novelty

Feature	Strict Novelty	Relative Novelty
Assessment of Novelty	Based on worldwide prior art.	Based on prior art within the jurisdiction of filing, sometimes with grace periods.
Grace Period	No grace period allowed.	Grace period is allowed (typically 6–12 months).
Jurisdiction Consideration	Prior art from anywhere in the world counts.	Prior art from within the jurisdiction of filing may be considered, with exceptions for other jurisdictions.
Impact of Public Disclosure	Any public disclosure, anywhere, destroys novelty.	Disclosure by the inventor within the grace period does not destroy novelty.
Examples of Jurisdictions	Most European countries and regions following strict novelty.	United States, Canada, and some other countries with grace periods.

Why Do Different Countries Adopt Strict or Relative Novelty?

The choice between strict and relative novelty provisions is influenced by the policy objectives of a country’s patent system. Some of the reasons why countries may choose one system over the other include:

Encouraging Innovation:

Strict novelty ensures that patents are only granted for truly innovative ideas and prevents an inventor from filing a patent based on prior art or public disclosure.

Relative novelty, especially with grace periods, encourages inventors to share their ideas publicly without the fear of losing patent rights, thus promoting collaboration and transparency in innovation.

Inventor Protection:

In countries with relative novelty, inventors are provided protection from inadvertent public disclosure. This can be particularly beneficial in the early stages of innovation when an inventor might need to test their idea before filing for a patent.

Commercial Considerations:

Countries with grace periods aim to balance the commercial interests of inventors who may not have had time to file a patent after publicly disclosing their invention.

Conclusion: Which System is Better?

Both strict and relative novelty systems aim to balance the interests of inventors, the public, and the patent office. While strict novelty offers greater certainty by disallowing any prior public disclosures before the filing of a patent application, relative novelty provides greater flexibility for inventors who may have disclosed their inventions publicly but still wish to protect their intellectual property.

Ultimately, the choice between these two systems depends on the jurisdiction and the specific needs of the inventor. Relative novelty may be seen as more lenient and inventor-friendly, while strict novelty is more rigorous and ensures that only truly novel inventions are granted patent protection.

As patent laws evolve, understanding the differences between these novelty provisions is crucial for inventors, researchers, and businesses in making informed decisions about their intellectual property strategies.

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