What is Intellectual Property?

1. Patents

What is a patent?

A patent is a legal instrument that represents a bargain between the patent owner and the country which granted the patent. The country grants to the patent owner an exclusive right to manufacture, use, sell or offer for sale the subject matter of an invention as defined by the claims of the patent.

In exchange, the inventor provides the country, and by extension, the population of that country, with a full technical teaching and description of the invention. That technical disclosure must be complete and include a full explanation of the invention sufficient for others skilled in the area to practice and reproduce the invention.

A patent is only effective in the territory in which it is granted. Subject to payment of required fees, a patent in Canada is valid for 20 years from the date on which the patent application was filed, irrespective of the date that the application matures to a patent.

Who can apply?

Generally speaking, the inventor is the first owner of the invention, and therefore entitled to file a patent application for that invention. The inventor may assign the patent rights to any person, corporation, partnership or legal entity which may subsequently become the patent owner.

What can be the subject of a patent application?

As defined in the Patent Act, an invention may be eligible for a patent if it relates to an art, process, machine, manufacture or composition of matter, or any new and useful improvement in any such area.

In Canada, an invention is considered to be new if it has not been available to the public anywhere in the world, prior to the filing of the application in Canada or prior to the filing date of a first patent application for the subject matter. The subject matter may be made available to the public by way of a prior patent, a written publication or a demonstration of a product.

In Canada and the United States, there is an exception which allows an inventor to file a patent application within one year of the inventor having disclosed the invention to the public.

In Canada, the subject matter of a patent must not have been obvious to a person skilled in the art to which the subject matter relates at the time the application was filed. In other words, the invention must represent more than a workshop improvement in the area.

In order for the subject matter of an application to be considered useful, there must be a utility to it, regardless of whether it has any commercial value. Certain types of subject matter are specifically excluded from patentability in Canada, including methods of medical treatment and higher life forms, such as animals.

How do you obtain a patent?

To obtain a patent, the patent application must be filed in the country of interest. There are significant costs involved in preparing and filing a patent application, and it is generally recommended to conduct a preliminary patentability search before proceeding. Given the complexity of patent applications, it is strongly recommended to retain a registered patent agent to prepare and file the patent application.

Once a patent application has been filed, it will be reviewed by officials in the Patent Office, who will issue a report accepting or rejecting, all or part of the patent application. A registered patent agent will then work with the applicant and the Patent Office to finalize the application and secure an issued patent.

Common myths:

  1. One of the most common myths about a patent is that it gives the patent holder the automatic right to use, sell or otherwise commercialize an invention. A patent owner must always be cognizant of the rights of others particularly where the subject matter of a patent fairly represents an improvement in existing technology. In such a case, a license or other permission from the owner of the earlier patent would be required in order for the patent owner of the later patent to exploit his invention.
  2. A further common myth is the rights which follow marking of “Patent” or “Patent Pending”. The designation “Patent Pending” should be used only once a patent application has been filed. That designation does not, however, give rise to any patent rights on its own. Once a patent has issued, it is highly recommended to mark the product as “Patented” with an indication of the jurisdiction. Although not required in Canada, such marking may be required in other jurisdictions in order to fully enforce the patent rights.

There is no such thing as a world patent. While it is possible to file an application which covers numerous jurisdictions throughout the world, a patent is geographically limited to a country or in some cases a specific geographic region.

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