2021-10-12
When you create a technique or a product that you believe is valuable, obtaining patent protection can be invaluable. Otherwise, your innovation rights are unprotected. A failure to obtain a patent leaves your invention available for public use. It is also possible that someone else could independently create something similar and get a patent on it, thereby prohibiting you from exploiting your innovation.
However, if you obtain a patent for your innovation, you will have the sole right to manufacture, use, or sell your invention in Canada. (However, because patent law is national, obtaining a Canadian patent does not cover your rights in other countries; you must get a patent in each country where you want your rights to be protected.)
What Kinds of Things Can Be Patented?
The Patent Act governs patent law in Canada. According to the act, an invention a new, useful, and non-obvious product, process, machinery, manufacture, composition or any improvement over the status quo. Here are some specific criteria for screening out viable patents:
- New: The invention must not have been publicly disclosed in writing or in any other way anywhere in the world. Existing descriptions of comparable innovations are referred to as "prior art."
- Utility: The invention must apply to the purpose for which it was created.
- Non-obviousness: The innovation cannot be evident to a person with appropriate technical expertise and understanding, i.e. a person of ordinary competence in the art.
How to Apply for a Patent
- Develop a Patent Strategy
Patents can be an expensive endeavor and it is not always feasible to protect everything that you create. Having a patent agent assist you with coming up with a strategy to protect what is the most important to you can be incredibly beneficial.
- Filing a Patent Application
A patent application can be submitted online to the Canadian Intellectual Property Office (CIPO) via its website. The application must include specific information to be granted a filing date. The actual filing of the patent application is easy, however the drafting process is significantly more challenging. Ensuring that an appropriate description, claims, drawings, and petition are filed is important. Patents have specific requirements that can make it challenging for a layperson so successfully issue a patent on their own. Having a patent agent who is familiar with the rules and requirements can help limit the risk of errors that could render an application invalid.
Because CIPO examines the application in both form and substance, and because patenting an invention is complicated, it is common (and indeed encouraged) to hire a registered Canadian patent agent to prepare and file the application and help in the application process. Registered patent agents must pass a series of challenging exams in order to practice and act on behalf of clients with CIPO.
So What Happens After You File?
After you file your application and pay the required examination fee, a patent examiner will review your claims and either approve or reject your patent application based on the aforementioned criteria. If it is rejected, you will receive an office action that sets out the reasons for the rejection and you are given the opportunity to make some amendments to the claims and provide arguments to overcome the rejection. The examiner will then review your amendments and arguments. Multiple office actions are possible.
Contact our team to learn more about how we can help you with the patent process.
