Patent Law


The topics in the Dial-A-Law series provide only general information on legal issues within the province of Alberta. This service is provided by Calgary Legal Guidance funded in part by the Alberta Law Foundation. The purpose is to make you aware of your legal rights and responsibilities. This is not legal advice. If you require legal advice, you should contact a lawyer.

This topic discusses patent law, which is the law relating to inventions.

Patent protection is different from copyright protection. Copyright protects a form of expression such as musical, dramatic, literary or artistic expressions, as well as software code.

Patents protect an invention. The invention may be a product, apparatus, composition of matter or a process with a function or purpose. In Canada it is also possible to patent software or methods of conducting business, depending on the specific nature of the invention.

The invention must be useful. It must be recognized as subject matter that may be patented according to the laws. For example, it must be new and not known to either the public or the person of ordinary skill in the field the invention relates to. It must be non-obvious. It must have the requirements of inventiveness, and not merely skilled improvements on the process.

There are some things that cannot be patented. For example, you cannot patent professional skills, plants, higher forms of life, mathematical equations, or anything that cannot be described with precision. Ideas cannot be patented, but the physical embodiments of ideas can be.

Patents give inventors exclusive rights to their inventions. No one can make, use or sell the invention in the country where the invention is patented. No manufacturer may export or import, use, or sell your patented invention, unless they procure a license to do so from you.

The Patent Office will not stop others from practicing your invention. A patent permits the owner of the patent to protect their own rights. The inventor must own the invention to patent it. The invention may be sold to second party before, during and after the process of obtaining a patent. The patent owner can sue a person who infringes upon the patent by using, making, or selling an identical or similar thing. Once granted, a patent is good for 20 years after the application is filed.

For Canadian patents, there are annual maintenance fees that must be paid. Inventions made by you as an employee of a company might be the property of the company if you are hired for the purpose of inventing, or if you have assigned your rights to the patent.

Before you apply for your patent, you should conduct a search at www.cipo.gc.ca. The search will tell you whether someone else has already patented or disclosed something similar to your invention. If you know which related inventions are patented, it helps you decide the scope of what you may claim as your own, and avoids an infringement on others’ patents.

The form of the patent application is described in the Canadian Patent Act and in the rules set out by the Patent Office. The office regularly rejects applications that are not submitted correctly. Your application must include a petition, a detailed description of your invention, an abstract, at least one claim, any drawing referred to in the description, and the filing fee. The claims define the scope of protection you are seeking for your invention. It must be clear what you are preventing others from making, using. or selling.

More detailed information about the Canadian Patent system and its requirements can be found at the Canadian Intellectual Property Office (CIPO) website: http://www.cipo.gc.ca . This site also provides access to the Canadian Patent Database from which a patent search can be conducted. A list of registered patent agents is available from the Patent Office website.

Patents are made public 18 months after the application is filed. The purpose of publication is to share the knowledge with the public, so that society can benefit from this advance in technology and knowledge.

You must apply in each country where you want the patent protection. Canada’s patent laws do not protect your patent in other countries. It is not necessary to make an application in all countries at the same time to protect your rights. According to international convention, if you file in one country, you can file in most other countries within one year and have your position protected.

You should consult with a patent agent regarding protecting your invention in other countries, as there are variations to the laws that apply to the patents. Generally, inventions must be new, and should not have been made available to the public before you file your application. However, in both Canada and the United States there is a one-year grace period for inventors. If you have made your invention publicly available, then you have 1 year in which to file your application. In Europe, however, if you have not filed an application for a patent, and have made your invention publicly available, you are no longer be entitled to a patent.

Sometimes there are conflicts as to who will receive the patent for an invention. In Canada and most jurisdictions around the world, the first inventor to file an application will receive a patent. If there are 2 inventors who develop the same invention, the inventor who files the application first receives the patent.

Dial-A-Law is a Calgary Legal Guidance public service project funded in part by the Alberta Law Foundation.