Question S – Answer

You and a couple of colleagues are the inventors of a new drug that successfully tackles stomach cancer and has few unwanted side effects. Your colleagues decide to publish the methodology used to develop the drug in a prestigious scientific journal. The article is published in January 2001 and the research results are presented in two international conferences in March 2001 with great success. In the meantime, your team realizes that it would be worthwhile obtaining a patent for the new drug. A patent specification is diligently prepared and filed in the United States and with the European Patent Office in April 2001. Which of the following scenarios is the most likely:

Answer: 4
because the invention was published within one year of the filing of the patent application, your team is denied a patent in Europe, but granted in the United States

Why? In Europe, there is an absolute novelty requirement. That is, anything relevant to an invention made public either in written or oral form anywhere in the world before the date of filing of a patent application, can be used as prior art against such invention. A publication prior to the filing of a patent application will also render the invention unpatentable in Australia, even if the authors of the article and the inventors were the same individuals. Thus, your ownprior publications will destroy the novelty of your invention in Europe and in Australia. In contrast, in the United States, there is a 12-month grace period to file a patent application for an invention disclosed in writing anywhere in the world. After a year, the publication will count as prior art against the invention. Very few countries have a grace period.

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