The content of an invention described in the specification or drawings, including content outside the scope of the claims, is disclosed by the patent being laid open or published in a patent gazette. Even with an application filed before a prior application is laid open or published in a patent gazette, when the content is the same as an invention described in the specification or drawings of the prior application, the latter application cannot be published as new technology. Based on the purpose of the patenting system to protect a new invention in return for making the invention public, it would not be proper to grant a patent for the invention described in such a case, and so the application will be rejected.
Specifically, if the invention in the claims of the later patent application is the same as the invention disclosed in the specification or drawings of the earlier patent application, the later patent application will be rejected.
The invention described in the specification of the earlier application is one that can be understood by the actual description in the specification and matter that is equivalent to the description. Matter that is equivalent to the description includes what can be derived by technical common sense at the time the later patent application was filed. Technical common sense is technical knowledge that is common among those skilled in the art (including commonly known or conventional art) or empirical rules. The invention claimed in the later patent application and the invention described in the specification and drawings of the earlier patent application are compared. If there is no difference, or there is a difference but it is only minor with respect to embodiment means for solve the problems (and therefore substantially the same), the later patent application is rejected.
