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een made available to the public by either a written or oral description. Simply put, if the invention has already been made available to the public, it is not going to be eligible for patent protection.

When determining whether or not an invention is new or novel, the issue of whether or not it has been made available to the public will become central. The invention, in order to be considered in the public domain, must have been disclosed to at least one member of the public, who could if he wished use the information freely and the disclosure had to be sufficiently enabling. Sufficiently enabling means that the information contained must be such that someone who has a reasonable level of skill in the area to which the invention relates would be able to implement and make use of the disclosure. The disclosure must be in relation to one document (or one document with several others interlinked) and cannot simply be disclosure obtained from a 'mosaic' of documents.

There are exceptions to this rule in relation to disclosure that allow a patent still to be established where the disclosure has been made within six months of the patent application and has been done in confidence.

Pulling these factors together, it is clear that the need for novelty insists on the patent being completely new and innovative. Although, based on the mosaic rule, the collection of previous documents and information to create a new invention will not be barred from receiving patent protection.

The Issue of Novelty 新颖性问题

From looking at the above breakdown of what an individual has to prove in order to establish a valid patent, it is clear to see that the issue of novelty is central to most patent decisions. The Section 2 requirement for novelty contained in the Act is a corresponding provision of Articles 54 and 55 of the European Patents Convention (1973) ('EPC').

As a general rule, an invention is not novel if the amalgamation of features has already been anticipated in a previous disclosure. This point was considered in detail in the case of SmithKline Beecham Plc's Patent [2006] RPC 10. In this case, it was held that for there to have been that degree of anticipation, there must firstly have been a disclosure and there must secondly have been the element of enablement. That is, based on the disclosure, the suitably skilled individual receiving the details of the process would have been able to replicate the process disclosed.

Pulling together both of these elements will allow the court to decide whether or not the patent before them is novel or not.

Let us first consider the element of disclosure. When it comes to determining whether or not the specific invention has been previously disclosed, the question is not whether the prior disclosure was for an item of similar utility, i.e. it does not necessarily have to solve exactly the same problem as the current invention. In deciding this matter, courts have stated that in order to be a conflicting patent, the situation previously disclosed must be so close to the new invention that the utility gained by the new invention would be a practical certainty. This suggests that in order to establish a valid objection to a patent application on the basis of a prior disclosure, it would have to be shown that the prior invention was inextricably linked in terms of function to the new invention. Therefor