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A Guide to Patents: Patent Protection

What is a patent?

Through a patent, the government gives you, the inventor, the right to exclude others from making, using or selling your invention from the day the patent is granted to a maximum of 20 years after the day on which you filed your patent application. You can use your patent to make a profit by selling it, licensing it or using it as an asset to negotiate funding.

In exchange, you are expected to provide a full description of the invention so that all Canadians can benefit from this advance in technology and knowledge. The Patent Office will lay open your application to public inspection 18 months from the earlier of: a) your filing date in Canada; or b) your filing date abroad under an international treaty; this date is known as the "convention priority date" (see Applying for a patent outside Canada).

People may then read about, though not make, use or sell, your invention without your permission. Only after your patent has expired, or lapsed for non-payment of maintenance fee, may anyone freely make, use or sell your invention. The idea is to promote the sharing of technological information while giving you a monopoly on your creation.

To sum up, a patent is:

  1. a document protecting the rights of the inventor;
  2. a repository of useful technical information for the public.

The rights conferred by a Canadian patent extend throughout Canada, but not to foreign countries. You must apply for patent rights in other countries separately. Conversely, foreign patents do not protect an invention in Canada.

People occasionally confuse patents with trade-marks, copyrights, industrial designs and integrated circuit topographies. Like patents, these are rights granted for intellectual creativity and are forms of intellectual property.
However:

  • patents cover new inventions (process, machine, manufacture, composition of matter), or any new and useful improvement of an existing invention;
  • a trade-mark is a word, symbol or design (or any combination of these features), used to distinguish the wares or services of one person or organization from those of others in the marketplace;
  • copyrights provide protection for literary, artistic, dramatic or musical works (including computer programs), and three other subject-matter known as: performance, sound recording and communication signal;
  • industrial designs are the visual features of shape, configuration, pattern or ornament (or any combination of these features), applied to a finished article of manufacture;
  • integrated circuit topographies refer to the three-dimensional configuration of the electronic circuits embodied in integrated circuit products or layout designs.

What can you patent?

Suppose you are the proud inventor of an electric door lock. How do you know if you can obtain a patent for it? There are three basic criteria for patentability.

First, the invention must be new (first in the world). Second, it must be useful (functional and operative). Finally, it must show inventive ingenuity and not be obvious to someone skilled in that area.

The invention can be a product (a door lock), a composition (a chemical composition used in lubricants for door locks), an apparatus (a machine for making door locks), a process (a method for making door locks), or an improvement on any of these. Ninety percent of patents are, in fact, for improvements to existing patented inventions.

A patent is granted only for the physical embodiment of an idea (e.g. the description of a plausible door lock) or for a process that produces something saleable or tangible. You cannot patent a scientific principle, an abstract theorem, an idea, a method of doing business, a computer program per se, or a medical treatment.

What can you patent?

Yes
  • new kind of door lock
  • apparatus for building door locks
  • process for lubricating door locks
  • method of making door locks
  • improvements on any of these
No
  • E = MC2
  • Romeo and Juliet
  • a business plan

Novelty, Utility, Ingenuity

  1. Novelty
    To be granted a patent you must be the original inventor of your door lock (or the assignee of the inventor). And it must be the first such door lock in the world.

    What's more, you cannot obtain a valid patent in Canada if your invention was made public before you filed the application. There is, however, a one-year exception. If you, or someone who learned of the invention from you, discloses it publicly, you can still file in Canada within the year following that disclosure. (This applies to Canadian patents, but not necessarily to foreign ones.)

  2. Utility
    A valid patent cannot be obtained for something that doesn't work, or that has no useful function. If your door lock does not work, it will fail the utility test.

  3. Ingenuity
    To be patentable, your invention must be a development or an improvement that would not have been obvious beforehand to workers of average skill in the technology involved. You can't offer an electric door lock that's merely a bit faster or stronger than others and that any door lock designer could easily come up with. Your door lock must elicit a "why-didn't-I-think-of-that" reaction from other designers in the field.

    You may obtain a patent for an improvement to an existing patented invention, but keep in mind that the original patent may still be in force. Hence, manufacturing or marketing the product with your improvement would probably be an infringement. This situation is often resolved by agreement between the patentees to grant licences to each other.

Registered patent agents

Preparing and prosecuting—following through on—a patent application is a complex task. Prosecution involves corresponding with the Patent Office, making any necessary amendments to the application, and fixing the legal scope of the patent protection. All this requires broad knowledge of patent law and Patent Office practice—knowledge that you can expect from a specialist known as a registered patent agent. A trained patent agent will ensure that your application is properly drafted so that your invention is adequately protected. Hiring such an agent is not mandatory but is highly recommended, and most inventors do so.

Registered patent agents must pass rigorous examinations in patent law and practice before they may represent inventors before the Patent Office. Beware of unregistered patent agents; they are not authorized to represent applicants in the presentation and prosecution of applications for patents or in other business before the Patent Office.

Patent agents' fees are not regulated by the Patent Office. You and your agent should agree on fees before work on your application begins.

Once you've appointed a patent agent, the Patent Office will correspond with no one else about the prosecution of your application. You may, however, change patent agents at any time.

The Patent Office can provide you with a list of registered patent agents, but cannot recommend any particular one to you.

When to apply for a patent

In Canada, patents are given to the first inventor to file an application. Therefore, it's wise to file as soon as possible after completing your invention, in case someone else is on a similar track. Even if you can prove that you were the first to conceive of the invention, you lose the race if a competing inventor files before you do.

On the other hand, filing too soon, while you're still developing your invention, may mean omitting essential features from the application. You may then have to reapply, adding to your expenses and risking possible patent disputes.

It's imperative, also, not to advertise, display or publish information on your invention too soon. Public disclosure of your invention before filing will make it impossible to obtain a valid patent. There is an exception in Canada if the disclosure was made by the inventor, or someone who learned of the invention from the inventor, less than one year before filing. Most other countries require filing before use or written disclosure anywhere.

Next

A Guide to Patents
| Table of Contents | Patent Protection |
| Patent Information | Appendix I - Format of the Application |
| Appendix II - Filing an Application | Glossary |


Last Modified: 2006-11-28 Top of Page Important Notices