The Canadian Patent Process Explained
Governments grant patents to innovators to encourage investment in R&D and facilitate the commercialization of new technologies, which is how most prosperous businesses get their start.
For the duration of the patent's validity, the patent grants the patent holder the exclusive right to produce, sell, offer for sale, import, offer for sale, offer for rent, offer for lease, offer for rent, offer for lease, offer for rent, offer for lease, offer Businesses that have patents or pending patents on their inventions are more likely to receive funding and be offered licensing and sales opportunities. In order to receive a patent, an invention must be described in sufficient detail in the patent application so that a person skilled in the art or science to which the invention pertains can make and use the invention. That is, if you can't tell the world how to make and use your new innovation, you might not be able to get a patent for it.
To begin the process of obtaining a patent for an invention in Canada, a patent application must be submitted to the Canadian Intellectual Property Office (CIPO). A patent agent is typically consulted during the application process. However, just because you file for a patent doesn't mean you'll automatically receive one. Examiners of patent applications make sure they check off all the boxes for patentability.
The granting and enforcement of patents in Canada are governed by the Patent Act and the Patent Rules. There are a number of requirements that must be met before you can file for a patent on your idea. In order to qualify, the invention must specifically:
- subject to patent protection;
- novel;
- practical; and
- non-obvious
1: Patentable Subject Material
What can and cannot be patented is discussed under the heading of "patentable subject matter." An invention must fall into one of the categories of "patentable subject matter," which includes works of art, processes, machines, products of manufacture, compositions of matter, and their improvements. The invention described and claimed also needs to be reduced to a workable form and not just an abstract theory. Therefore, an invention that can be protected by a patent must be either an entirely new product, result, process, or combination of these.
Science, abstract theorems, and various forms of energy (i.e., fertilized eggs and totipotent stem cells) are all examples of more complex forms of life. e such as radio waves, sound waves, electric currents, or even the force of an explosion) cannot be patented. Nucleotides and some molecules can be patented, but higher forms of life with multiple cells cannot. Further, in Canada, medical diagnostic procedures are eligible for patent protection but medical treatment procedures are not.
Methods of influencing social interactions or behavior, as well as ideas pertaining to professional skills and judgment, are typically not patentable.
Inventions in the realm of computers can qualify for patent protection if they involve some sort of physical manifestation or effect. Software-like innovations are often recast as "computer-implemented inventions" or something similar because of this. However, it is important to keep in mind that just because an invention involves the use of a computer does not automatically make it patentable subject matter, even if the inventor has carefully drafted their claims.
In sum, an invention must be reduced to a definite and practical form, described in a patent application, and typically accompanied by drawings and an abstract, in order to be of a patentable subject matter. Such materials must be comprehensive enough to allow those skilled in the art to reproduce and use the invention without excessive trial and error.
Different Applications with Comparable Outcomes
It's possible to get non-analogue or unexpected results from a new application of a well-known prior disclosure. Thus, an existing invention that is put to a different use may still qualify for a patent. A chemical that was once used to poison rats could become patentable if its use as a plant growth promoter was recently discovered.
The discovery of a more specific but analogous result may also be patentable where a means is already known to be useful in producing the generic result. Patentable in Canada are both novel applications and new adaptations of existing ones.
2. Novelty
First-to-file is the rule, not the exception, in Canadian patent law. To be eligible for patent protection, an invention must be "new" as of the filing date of the application, not the date on which it was first made or the inventive concept first conceived. A new invention need not be wholly original; it may simply be a novel combination of previously known elements. So, it's possible to get a patent for new uses for old equipment or methods of doing things. It's important to remember, though, that putting together unrelated elements that don't do anything for each other isn't enough. To qualify for a patent, a new invention must be more than just the sum of its parts.
If the invention has been made public in any country before, it will not be granted a patent. A disclosure that prevents a patent from being issued need not be an exact description of the entire invention. A public disclosure occurs when the invention is made available to the general public through means such as the sale of the invention or its publication in a technical journal or periodical. Before filing a patent application, it is wise to check for similar patents or hire a patent attorney to do a patentability assessment.
The criteria for determining if an invention is expected are (i) e , already known), the claimed invention's core features are evaluated in light of existing literature in the relevant technical field. Prior art refers to all of the aforementioned disclosures that came before a patent application was filed; they are the basis for what CIPO looks at, considers, and ultimately uses to either grant or deny the application.
Extended Opportune Time of One Year
Patent applicants and inventors in Canada are given a year from the date of public disclosure to file a patent application. Once a patent application has been filed, any prior art that is a result of public disclosures made by the applicant or inventor themselves is disregarded, starting a year prior to the filing date of the patent application.
To rephrase, an inventor has a year from the date of public disclosure to submit a patent application to CIPO. To illustrate, if an inventor makes their first public disclosure of their invention in January 2022, and a patent application for the invention is filed within 12 months of that date, the January 2022 disclosure will not be considered prior art that would prevent the invention from being patented. e as of the first of the year 2023 CIPO may reject a patent application for lack of novelty if it is filed more than one year after a public disclosure made by the inventor.
In other words, the one-year grace period is worldwide and the public disclosure can be made anywhere in the world. Verbal, written, or other forms of public disclosure are all acceptable.
It should be noted, however, that several other nations and regions have strict requirements for 100% original content. Thus, it is unwise to make any public disclosure of the invention before a patent application is filed, as this could prevent the applicant from obtaining a patent therefor or render any eventual patent granted in these regions null and void. In all cases, it is better to keep your idea confidential as you further develop your idea and work out how to make and use the invention although you might decide to diclose preliminary details to others under the protection of a non-dislosure agreement and/or after filing a provisional patent application
Enablement
When a person skilled in the art could figure out how to make and use the invention based on the prior disclosure, without inventive skill or undue burden, this is known as an "enabling prior disclosure." An enabling disclosure may occur, for instance, if the nature of an invention is made clear by means other than those of the inventor, or by reverse engineering a commercially available product that incorporates the invention.
Products for sale that incorporate the invention are subject to the same enablement principle. In other words, if an offer to sell the invention makes it possible for the invention to be known without any special skill or difficulty, then the offer to sell would constitute a prior disclosure. The one-year waiting period may begin counting from the date of the disclosure that makes the invention possible.
Note that the United States does not follow the same "enablement principle" that Canada does. In the United States, the one-year cooling-off period begins when the invention is first used or offered for sale to the public. Additionally, the United States patent application's priority date, not the filing date, is used to determine the start of the one-year grace period.
Three, the value of being useful
If an invention is to be granted a patent, it must have practical applications. What this means is that the invention has to achieve its intended results. Consequently, there is no value in an invention if it cannot be used as intended.
The invention also needs a practical application that can be monitored and replicated. However, the utility requirement can be satisfied without proof of commercial success. Therefore, regardless of whether the invention itself becomes commercially successful (i), a process that produces higher quality output, is more efficient, is built to be better or cheaper, or that otherwise provides benefits to the public may be considered useful for the purpose of patentability. e , despite widespread disapproval)
Last but not least, this requirement can be met with even the smallest amount of utility, but it must be relevant to the invention itself; a paperweight that looks like a coffee machine is not "useful" because it can be used to hold papers.
Verified Practicality and Reliable Forecasting
To prove that the invention is practical, a patent application might detail how it is used in practice. The ability to construct a working example in accordance with the patent application's description is more important than the existence of a working example at the time of filing.
Otherwise, if the utility of an invention cannot be demonstrated, it may be established through sound prediction where the inventor or applicant makes an explicit promise of a specific result. The predictability of an invention's usefulness will be evaluated based on whether or not its:
- the forecast is supported by evidence;
- At the time of filing for the patent, the creator had a well-developed theory or set of premises from which one could deduce the desired outcome; and
- There is adequate transparency.
Since the invention at issue in the patent application will have been built and demonstrated to work (i), most inventors and applicants can disregard the need for a more in-depth analysis of each of the aforementioned elements in favor of making a more confident prediction. e serve a purpose)
4. Unpredictability or Originality
In order to be granted a patent, an invention must have practical application and not have been obvious prior to the filing of the patent application. Together, the common general knowledge and the state of the art to which the invention relates are reviewed from the perspective of a person skilled in the art to determine whether or not the invention is obvious. Nonobvious inventions are those that offer something new beyond the sum of what has been previously disclosed.
When looking at obviousness in Canada, a four-step process is used:
- Figure out who would be considered a "person skilled in the art" and what kind of common knowledge they would have;
- Determine or give meaning to the inventive idea underlying the claim at issue;
- Determine what sets the claimed invention apart from existing solutions;
- See if the differences between the prior art and the claimed invention would have been obvious to a person skilled in the art who was unaware of the alleged invention as claimed.
When determining whether something is obvious, it is necessary to conduct a detailed analysis of its context. A recent college grad with relevant experience is a reasonable proxy for the "person skilled in the art." However, it must be stressed that this fictitious expert lacks even a speck of originality. To rephrase, we aren't looking for an innovator or a particularly creative person, just someone who has the right education and experience.
Thus, it is common practice to evaluate the claimed inventive elements in light of existing knowledge in the applicable technical fields.
How to Tell if an Invention is Too Obvious Whether it is obvious that the thing being tried ought to work or whether the problem solved by the invention has a finite number of identified and predictable solutions known to those skilled in the art is an important consideration. It's also helpful to think about whether or not the claimed invention was discovered through the use of standard trial and error procedures, and if so, how extensive and labor-intensive that process was. Finally, it's instructive to think about whether there's a need in the prior art for the solution that the claimed invention offers.
Comparison of U.S. and Canadian Patent Laws: Commonalities and Distinctions
When you boil it all down, U S Similarly, patent law mandates that patentable innovations be "novel," "non-obvious," "useful," and "patent-eligible."
In the U S The United States Patent and Trademark Office (USPTO) checks for prior art disclosures that are identical to the invention being claimed in a patent application in order to determine whether or not the application is novel. Also, keep in mind that a prior disclosure in the United States need not teach a skilled person how to make or use the invention to be considered a novelty destroyer, whereas in Canada this is the case. S Whether or not the disclosure could have taught a skilled person how to make and use the invention, the novelty will be lost once it has been used in public or offered for sale. What's more, in the United States S Priority date of the patent application (i.e., the date when the clock started ticking on the one-year grace period) e , where U could stand for "unknown." S rather than the date of the non-provisional patent application filing
If we consider its practicality, U S Under patent law, an invention must be useful and have clear benefits for it to be protected. U.S. Patent and Trademark Office (USPTO) guidelines describe a stricter standard of utility than its Canadian equivalent, requiring a specific and substantial utility whose practical purpose would be considered credible by a person of ordinary skill in the art.
Conviction under U S In evaluating patent law, one takes into account the perspective of a "person of ordinary skill in the art," whose level of expertise is once again a contextual one. U S The case law has provided a number of factors that aid in determining what qualities are embodied by the person of ordinary skill in the art. The rate of innovation, the sophistication of the technology, the education level of the inventor and active workers in the relevant field, and the types of problems encountered in the art and their prior art solutions are all important considerations.
Material that can be granted a patent in the United States S uses two factors to make a decision A claimed invention must first be a process, machine, manufacture, or composition of matter in order to qualify under the relevant statutes. Second, there can't be any judicial exceptions to patent-eligible subject matter in the claimed invention unless the invention is significantly more limited than the exception. Abstract concepts, natural laws, and natural phenomena all fall outside the purview of the law.
As much as Canadian and American S industry-specific variations exist in the patent law with regard to patent-eligible subject matter. Examination of Canadian and American S Methods of medical treatment are not patentable in Canada but are in the United States, as would be revealed by a review of patent law. S law
Conclusion
Having read this article, you should have a better idea of what characteristics of an innovation warrant a patent. If you think your idea has the potential to be patented, you may be wondering if you should go ahead and do so. This will be determined by analyzing the commercial opportunity and comparing the benefits of pursuing patent protection with the costs involved. Contact us right away to set up a free and confidential initial telephone consultation with a member of our team to learn more about how to patent and market your potential invention.
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