Novelty. Statutory Basis. "invention" means any new and useful art. . . But the novelty requirement is set out in detail in s28.1/2 An invention which is not new is “anticipated”. Rationale.
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(a) more than one year before the filing date by the applicant, or by a person who obtained knowledge, directly or indirectly, from the applicant, in such a manner that the subject-matter became available to the public in Canada or elsewhere;
A signpost, however, clear, upon the road to the patentee's invention will not suffice. The prior inventor must be clearly shown to have planted his flag at the precise destination before the patentee.
The requirements that must be met before an invention should be held to have been anticipated by a prior publication must, for the purposes of practical utility, be equal to that given by the subsequent patent. . . . It is not enough to prove that an apparatus described in it could have been used to produce a particular result. There must be clear directions so to use it.
Nor is it sufficient to show that it contained suggestions which, taken with other suggestions, might be shown to foreshadow the invention or important steps in it. There must be more than the nucleus of an idea which, in the light of subsequent experience, could be looked on as being the beginning of a new development.
The prior patent must provide enough information to allow the subsequently claimed invention to be performed without undue burden. . . . If inventive steps are required, the prior art will not be considered as enabling. However, routine trials are acceptable and would not be considered undue burden
An invention is a piece of information. Making matter available to the public within the meaning of section 2(2) therefore requires the communication of information. The use of a product makes the invention part of the state of the art only so far as that use makes available the necessary information.
“In this case, knowledge of the acid metabolite was in my view made available to the public by the terfenadine specification under the description "a part of the chemical reaction in the human body produced by the ingestion of terfenadine and having an anti-histamine effect".”
On the facts – No enablement in prior art (obiter)
For anticipation, the genus patent must provide enough information so as to allow the selected invention to be performed without undue burden. In this case, the applications judge concluded that the ‘875 patent did not specifically lead to the claimed invention. He noted, on the record before him, that if one were to follow the teachings of the prior art, one would obtain racemates, never their isomers.