Novelty is one of the fundamental requirements for obtaining a patent. Your invention must be new — meaning it has not been publicly disclosed anywhere in the world before your filing date. However, what many inventors do not realise is that you do not need to have invented something entirely unprecedented. You need at least one point of technical difference from what has come before, and that difference must not be obvious to someone working in the relevant field.
What does "novelty" mean in patent law?
In patent terms, an invention is considered novel if it has not been made available to the public before the priority date of the patent application. "Made available to the public" is interpreted broadly — it includes published patents, academic papers, product manuals, trade show demonstrations, online publications, and even the inventor's own prior disclosures.
This is why it is so important to file a provisional patent application before making any public disclosure of your invention. Once you have a priority date, only documents published before that date can be used against your application.
You do not need a completely unprecedented invention. You need at least one meaningful technical difference from what has been done before.
How to do a preliminary search yourself
A practical starting point is to search Google Patents, which provides free access to a large international database of published patent documents. Google Patents also features a Prior Art Finder tool that can identify semantically related patents and publications across multiple databases.
When conducting your own search, consider the following approach:
- Think broadly about the keywords that describe your invention's function and structure, not just the name you have given it
- Try different combinations of terms — competitors may describe similar concepts using entirely different language
- Review not just the titles and abstracts but also the claims and detailed descriptions of relevant results
- Look at the "Cited by" and "Similar" sections of relevant patents to discover related documents
- Consider including non-patent literature by searching Google Scholar alongside Google Patents
A self-conducted search can give you a useful initial sense of the landscape and help you understand what already exists in your field.
The limitations of self-searching
While a preliminary search is valuable, it is important to recognise its limitations. Patent documents use highly specific technical language, and relevant prior art may be classified under unexpected categories or described using terminology you would not naturally search for. Documents in languages other than English may also be relevant but difficult to find without specialised tools.
Furthermore, the patent examiner who eventually examines your application will conduct their own independent search using professional databases, classification systems, and search methodologies. They may identify prior art that a keyword-based search would miss.
For these reasons, a self-conducted search should be treated as a starting point rather than a definitive assessment of patentability.
Professional novelty searches
We can perform a professional pre-filing novelty search that goes beyond what a basic keyword search can achieve. A professionally conducted search typically includes structured keyword searches across international databases, classification-based searching using the Cooperative Patent Classification (CPC) system, and expert review of results to identify the most relevant prior art.
The purpose of a professional search is not to give a simple yes-or-no answer but to provide a clearer picture of the prior art landscape. This allows us to identify the specific points of difference between your invention and the closest existing technology, and to tailor the patent application accordingly.
The International-type search option
A further searching option, which we generally recommend, is to request an International-type search during the provisional patent application stage. This is a formal search conducted by a patent office search authority based on the claims defining your invention.
The International-type search provides examiner-style feedback at an early stage, including an official opinion on the novelty and inventive step of your claims. This gives greater certainty than a private novelty search alone, because you are receiving the same type of assessment that will be applied during the subsequent PCT application stage.
An International-type search during the provisional stage provides official examiner feedback early, giving you a clearer picture of your patent prospects before committing to further filings.
If this search has already been conducted during the provisional stage, the same search will not need to be repeated during the PCT phase, which provides both strategic and practical advantages.
Prior art is not always fatal
Many inventors become discouraged when they discover existing patents or publications that appear similar to their invention. However, finding prior art does not mean your invention is unpatentable. In most cases, the key to securing patent protection lies in clearly identifying and emphasising the specific technical differences that set your invention apart from the closest prior art.
Even if the overall concept is not entirely new, individual features, specific combinations of features, or particular technical implementations may well be novel and inventive. The question is not whether anything similar exists, but whether your specific technical contribution is new and non-obvious.
Our multi-perspective claiming strategy
Regardless of whether a pre-filing search is conducted, when preparing a patent application we focus on thoroughly describing the invention and claiming it from multiple perspectives. This means drafting a structured series of claims directed to the various technical features and functionality of the invention — ranging from broader claims through to narrower fallback positions.
This approach ensures that even if some aspects of the invention are found in the prior art during examination, there are alternative claim positions available that focus on the genuine points of novelty. The result is a more resilient patent application that can adapt to whatever prior art the examiner may find.
By combining thorough description with strategic claiming, we give your application the best possible chance of proceeding to grant with meaningful scope of protection.
Next steps
If you have an invention and are unsure whether it is new enough for patent protection, contact Patentec for a complimentary consultation. We can discuss the nature of your invention, advise on whether a novelty search is appropriate, and recommend a strategy for moving forward with confidence.
For more on the requirements for patentability, see our guide to protecting your idea in Australia. If you are ready to begin the filing process, learn about the provisional patent application as a first step.