When is a Species really Novel?

Selection inventions are directed to inventions that are already "generically" disclosed in the prior art. However, a selection of a sub-range of numerical values from a broader range can be regarded as new when each of the following criteria is satisfied:

i. The selected sub-range should be narrow,

ii. The selected sub-range should be sufficiently far removed from the preferred part of the known range (as illustrated for instance in the examples given in the prior art), and

iii. The selected sub-range should not be an arbitrarily chosen specimen from the prior art, i.e. not merely one way of carrying out the prior teaching, but must provide a new invention (purposive selection).

A sub-range singled out of a larger range is new not by virtue of a newly discovered effect occurring within it, but has to be new per se. The three postulates for the novelty of a selected sub-range illustrate that novelty is an absolute concept. It is therefore not sufficient merely for the wording of the definition of an invention to be different. What has to be established in the examination of novelty is whether the state of the art makes available the subject-matter of the invention.

Consequently, it is relevant to consider whether a person skilled in the art would "seriously contemplate" - in the light of all the technical facts at his disposal - to apply the technical teaching of the prior art in the range of the sub-range. If the skilled person would seriously contemplate applying the technical teaching in the "selected" area, the selection invention is not novel.