Patents

What is a patent?

A patent affords the inventor or assignee the right to exclude others from making, using or selling the invention. Patents are granted for products, processes or improvements thereof but do not grant a right of commercialisation.

At the time of filing, the document is called a “patent application”. Following grant by the Patent Office, the application becomes a “patent”. Patent applications are automatically made public eighteen (18) months following their filing.

A patent is one of the most important intangible assets of a company, university, etc.

Why obtain a patent?

A patent is a tool to ward off potential infringers. The examination procedure of a patent application, which includes thorough verification aimed at identifying conflicting prior art, assists the applicant to claim a unique invention, to make it available to the public and to promote the advancement of technology.

An invention can also be protected by trade secret. However, this option has a serious disadvantage because even though the secrecy is maintained, a third party could independently arrive at the invention and obtain a patent blocking exploitation of your invention.

Who can file a patent application?

Only the legal owner of the invention can obtain a patent. The owner can be the inventor(s), a company, a university or other legal association.

How long will a patent last?

The life of a patent in Canada (and most countries) is twenty (20) years following the date when the application was filed. Maintenance fees must be paid in order to keep the patent (or patent application) in force.

What are the criteria to obtain a patent?

In order to be patentable, an innovation must be new, non obvious and show utility.

What are the steps involved in obtaining a patent?

A patent application usually involves:

• performing a preliminary search of existing documents (termed « prior art »). This search verifies whether the innovation is already patented or taught. It enables a better positioning of the innovation with respect to the prior art and thus enables the protection of the broadest rights for this innovation without overlapping the innovations of others;
• drafting and filing of a patent application;the publication of the patent application;
• the examination of the application by the Patent Office;
• making any necessary amendments to the application;
• granting of a Notice of Allowance and issuance of the patent by the Patent Office.

Does a patent in one country protect the rights of an owner in another country?

No. The Canadian patent only protects against the practice of a patented invention in Canada. In order to obtain protection in another country, a patent application must be filed there.

Does registration in Canada protect the owner’s rights in other countries?

No. If the products are sold in other countries, the owner should consider filing foreign applications.