Patents Bill

  • enacted
8 Meaning of prior art base
  • (1) For the purpose of deciding whether or not an invention is novel and for the purpose of deciding whether or not an invention involves an inventive step, the prior art base, in relation to an invention so far as claimed in a claim, means all matter (whether a product, a process, information about a product or process, or anything else) that has at any time before the priority date of that claim been made available to the public (whether in New Zealand or elsewhere) by written or oral description, by use, or in any other way.

    (2) For the purpose of deciding whether or not an invention is novel, the prior art base, in relation to an invention so far as claimed in a claim, also includes the information contained in a complete specification filed in respect of another patent application if all of the following circumstances apply:

    • (a) if the information is, or were to be, the subject of a claim of that complete specification, the claim has, or would have, a priority date earlier than that of the claim under consideration; and

    • (b) that complete specification became open to public inspection after the priority date of the claim under consideration; and

    • (c) the information was contained in that complete specification on its filing date and when it became open to public inspection.

    (3) However, subsection (2) does not apply if—

    • (a) either or both of the following apply:

      • (i) all of the nominated persons under the patent application are the same as the nominated persons under the other patent application at the filing date of the patent application under consideration:

      • (ii) all of the inventors identified in the patent application are the same as the inventors identified in the other patent application at the filing date of the patent application under consideration; and

    • (b) neither of the complete specifications filed for the patent applications contains a claim for matter claimed in the other.

    Compare: Patents Act 1977 s 2(2) (UK)