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A patent may only be granted for an invention that is new (the requirement of novelty). Under English law, an invention is new if it does not form part of the state of the art. The UK Patents Act 1977 states that the state of the art in the case of an invention is taken to comprise everything (whether it is a product, a process, information, or anything else) that has at any time before the priority date of the patent been made available to the public (whether in the UK or elsewhere) by written or oral description, or by use in any other way. Documents (such as scientific papers or patents) that form part of the state of the art are often called prior art documents. There are two legal requirements that must be fulfilled before the English courts will conclude that an invention claimed in a patent has been anticipated: prior disclosure and enablement.
Anticipation: the requirement of disclosure
For the requirement of disclosure, what is said or described in the prior art must, if it was carried out, necessarily result in an infringement of the patent under attack. In the simplest of cases, it may be that the prior art discloses the same invention. There must however be no question that performing the invention set out in the prior art would result in an infringement of the later patent. If there is more than one possible consequence that would result from carrying out the prior art, the claimed invention is not anticipated (although it may be obvious).
Anticipation: the requirement of enablement
The enablement requirement means that the skilled person would have been able to perform the invention that satisfies the requirement of disclosure. Enablement can be critical if there is some prior use of the invention, but the skilled person is unable to make it from the information disclosed and his common general knowledge. For example, if a product has been used (or more correctly, made available to the public) before the priority date of a patent, this does not necessarily mean that the product will fulfil both the disclosure and enablement requirements such as to constitute an anticipation that would invalidate the patent. Only if the person skilled in the art can discover the composition of the product and “reverse engineer” its structure - and reproduce it - will the prior use anticipate the patent in question.
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