novelty

An inoperable invention or one which fails to achieve its intended result does not negative novelty

In Patent Law. See Patent.

An objection to a patent or claim for a patent on the ground that the invention is not new or original is called an objection “for want of novelty.”

9 The quality in an invention of being "new:" this pertaining to the general relations of the invention to the existing state of the art. See New, 1. Want of novelty will defeat an application for a patent, invalidate a patent already issued, and defeat an action for an infringement. When a machine is new and its product or manufacture old, the machine is patentable. When the machine is substantially old and the product new, the product is patentable. When both are new, both are patehtable. And so of processes and their results. Patentability may exist as to either, neither, or both, according to the fact of novelty or the opposite. ■* It is not sufficient that the thing is new and useful; and the author must find it out by mental labor and ■ 4 Bl. Com. 391. ' Sheaffer v. Eakman, 56 Pa. 163 (1867), Strong, J. = Bslin V. District of Columbia, 23 Ct. 01. 162 (lgS7). * L. novatio: novus, new. * [Guichard ti. Brande, 57 Wis. 636 (1883), Cole, 0. J. » Clark V. Billings, 59 Ind. 509 (1877), Biddle, C. J.; 64 id. 413. ' Adams V. Power, 48 Miss. 454 (1873). s Mowry v. Todd, 12 Mass. '•284 (1815), Parker, C. J.; Derby v. Sanford, 9 Cush. 264 (1852); 8 Paige, Ch. 238; 9 Baxt. 10. "L. novellitas^ newness: novus, new. intellectual creation. If the result of accident, it must be what would not occur to all persons skilled in the art, who wished to produce the same result. There must be some addition to the common stock of knowledge, not merely the first use of what was known before. ' A new combination, if it produces new and useful results, is patentable, though all the constituents were well known and in common use before the combination was made. But the results must be a product of the combination, not a mere aggregate of several results, each the complete product of one of the combined elements. Combined results are not necessarily a novel result, nor are they an" old result by a new and improved manner. Merely bringing old devices into juxtaposition, and allowing each to work out its own effect, without the production of something novel, is not invention.' The combination must produce a different force or effect, or result in the combined forces or processes, from that given by the separate parts. There must be a new result produced by their union; if not so, it Is only an aggregation of separate elements. Thus, sulphur, mixed with India-rubber, produces vulcanized rubber — a new article. The action of a stem-winding watch is another instance. In each case the result comes from the combined effect of the several parts, not from the separate action of each part. The required result does not follow from attaching a piece of rubber to a lead-pencil. ^ The combination must form either a new machine of a distinct character and function, or produce a result due to the joint and co-operating action of all the elements, and which is not the mere adding together of separate combiiiations. Otherwise, it is a mechanical juxtaposition, not a vital union.' The design of the patent laws is to reward those who make some substantial discovery or invention, which adds to our knowledge and makes a step in advance in the useful arts, not to grant a monopoly for every trifling device, every shadow of a shade of an idea, which would spontaneously occur to any skilled mechanic or operator in the ordinary progress of manufactures. Such an indiscriminate creation of ■exclusive privileges would tend to obstruct rather than stimulate invention.^ The application of an old process or machine to a similar or analogous subject, with no change in the manner of application, and no result substantially distinct in its nature, will not sustain a patent, even if the new form of result has not before been contemplated.' See further Combination, 1; Patent, 2. » Earle v. lawyer, 4 Mas. 5 (1825), Story, J. 2 Hailes v. Van Wormer, 20 Wall. 368 (1873), Strong, J. = Eeckendorfer v. Faber, 92 U. S. 357-58 (1876), Hunt, Justice.' * Pickering v. Mc Cullough, 104 U. S. 318 (1881), Matthews, J. » Atlantic Works v. Brady, 107 U. S. 201 (1882), Bradley, J.; Phillips V. Detroit, 111 id. 608 (1884); 17 F. E. 630.

The patent laws of the United States restrict the privilege to inventions which are " new and useful." Considerable discussion has arisen in the cases as to what constitutes novelty, within the meaning and policy of the law. The question is that of priority of invention, but is more general in its scope and bearing. Priority relates rather to competing claims of two applicants or patentees; novelty, to the general relations of the invention to the existing state of the art. Want of novelty is a sufficient reason why the commissioner should refuse a patent; it may also be shown in the courts to invalidate a patent which has been gi'anted. To warrant the commissioner in issvung a patent, in the first instance, he must be satisfied, upon examining the application, not only that the applicant is, as compared with any other individual claimant, the true and first inventor of the improvement, but also, and beyond this, that the thing claimed is new, as compared with the general extent of human knowledge and skill in the science or art to which it appertains. Also it is declared to be a defence to an action for infringement to show that the invention patented has been previously described in a public work. Such description is deemed to disprove novelty, and it therefore avoids the patent, whether it was known to the patentee or not. But the description must be one which was prior in point of time to the invention of the plaintiff; and it must be a description sufficiently full and precise to enable a mechanic to construct the improvement; and it must be contained in a printed book. Description in a foreign publication, or a patent defeat an application, But the law does not go beyond tbese limits, in allowing a claim to novelty to be disproved by the fact of usage abroad. An original inventor is entitled to receive a patent for his invention, even though, by reason of such invention having been known in a foreign country, he is not the first inventor, provided he believed himself to be the first inventor, and such foreign invention had not been patented or described in any printed publication. Mere use of the invention in a foreign country, unaccompanied by a patent or a published description, does not, as does a use in this country, avoid the patent. The element of novelty is determined by considerations somewhat peculiar, in the case of patents for what are called " combinations; " for a patent may be sustained for a machine embodying a novel combination of several parts, notwithstanding that each of the parts has been used in some machine formerly known. It is no objection to a patent for such a combination that some or even all of the parts have been known and used before. If the combination of them is new, and produces what is a substantially new and useful result, the combination is patentable. But a combination, to be patentable, must be substantially new, not a copy. The parts may have been used before: it is the bringing of them together that constitutes the invention. The combination must diifer materially and substantially from former combinations. The invention is not "new," if all the parts of the combination have been applied to a different object before, and they are now only applied to a new object. The claim can only be sustained by establishing novelty, not as to the parts, but as to the combination. Noverint universi per praesentes. Know aU men by these presents. Formal words used at the commencement of deeds of release in the Latin forms. The corresponding English phrase has a moi-e extended use. NUDE; NUDUS. Bare; naked; without consideration. term is constantly used in modem laW to denote a contract which is not supported by a consideration, and therefore will not sustain an action, according to the maxim, ex nudo pacta non oritur actio, q. V.