2020-05-04
Aside from outright secrecy, the best way to protect your intellectual property and avoid copycats is to patent your work. However, obtaining a patent is not often not a straightforward, quick, or cheap process to undertake. You can benefit greatly from seeking assistance from someone with years of experience and previous success in obtaining and defending patents. In Canada, the Patent Act dictates who can apply for a patent, what can be patented, when a business should apply for a patent, how to apply for a patent, and what kind of rules surround patent protection.
If successful, a patent will serve a term of twenty years from the day of filing. During this period, any manufacture, use or sale of the patented invention without the express consent of the one holding the patent would be considered an infringement. With this in mind, we'll briefly cover the primary topics of patent law in Canada below.
Who Can Apply for Patents?
Owners of the patent may apply and may include individuals or businesses. Ownership can become more tricky to determine when employees and employers get involved. In some instances, an employee may create an invention and wish to patent it. There are a number of factors that will determine whether or not it is the employee or the employer who is entitled to the patent. If the employee mostly worked on the invention at home on their own time, this might disqualify the patent application on behalf of the business owner. However, many employees do work specifically to create inventions, in which case, the rights of the invention are generally assigned to the business owner. Employment agreements may also be used to dictate who a patent owner should be.
What Can Be Patented?
In Canada, three measures are used to determine the eligibility of a patent application. Before exploring those three categories, however, the invention must meet the following definition as defined by the Patent Act, "any new and useful art, process, machine, manufacture or composition of matter or any new and useful improvement in any art, process, machine, manufacture or composition of matter.". With this in mind, the first measure is "novelty". This term means the invention must not have been public knowledge or described in any written source before its a patent application. Documentation on the invention by the inventor will not affect this process as long as it was made available within the previous 12 months. Next, the invention must show "utility", or be useful for the purpose in which it was invented. Finally, a patent must be non-obvious, or not something that would be considered obvious to the person of skill in the field to which the invention relates.
When Should a Patent Application Be Submitted?
Upon the "initial disclosure", the inventor has a grace period of one year to apply for a patent. The disclosure event typically means a conference talk, technical paper, blog post, press release, or other. This grace period may be different or non-existent for countries other than Canada. In an ideal situation, the invention remains confidential until after a patent application is filed to prevent a potential loss of patent rights in other countries.
How Can I Apply for a Patent?
In Canada, all patent applications must be filed with CIPO (Canadian Intellectual Property Office). This governing body also has tools that can help you determine whether your idea or invention is patentable. In some cases, "prior art" could hinder your ability to obtain an issued patent. Prior art may include previously filed patent applications, issued patents, scientific literature, papers and competitor products. If your invention is not different enough from the prior art references, your patent application may be refused. This is also why it's important to word the patent application carefully and correctly. A registered patent agent or lawyer can assist with this.
What Else Should I Know?
Applying for a patent in Canada only protects your intellectual property in Canada, it does not apply to any other country. Therefore, it may be a good idea to patent the idea or invention in other nations. Choosing which countries to file in can be challenging but should be carefully considered. There is a time limit on your ability to file your patent application in other countries. For a free consultation, contact us and let us know how we can help.
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