Patent Law


The topics in the Dial-A-Law series provide general information on legal issues within the Province of Alberta. The purpose of this topic is to inform you 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.

 

What is a patent?

A patent is a legal document that is given to the inventor of a creation, stating that they have an exclusive right in their invention. The invention can be a product, a machine, a process, a composition of a formula (e.g. a chemical formula), or a way of improving any of these things. In Canada, it is also possible to patent software or methods of conducting business, depending on the specific nature of the invention. Once a patent is granted, others will be prevented from copying your invention or claiming it as their own. A patent is also beneficial as it allows you to grant others a license in using your invention, it allows you to negotiate finances and allows you to sell your invention one day.

In order for your invention to be protected under a patent, it must meet certain requirements. First, the invention must be new to the public and first to the world. Secondly, the invention must be useful so that it is functional and effective. Third, the invention must meet the definition and process of being inventive. This means, it must undergo the creation or design process, show originality and creativity and not be something that it already known and obvious to someone of average skill within the field the invention is under.

How is it different from copyright?

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 codes. Patents on the other hand, protect an invention. Both patents and copyright protect legal rights of the owner in respect to their creation. The only distinction is what type of creation it is. To determine whether your work is an invention (protected under patent law) or a form expression (protected under copyright), you may consult with a lawyer who may assist you further in respect to your legal rights over your work.

What are your rights?

Patents give inventors exclusive rights to their inventions. This means that no one can make, use or sell the invention in the country where the invention is patented because it is yours. For an instance, the manufacturer may not 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 only permits the inventors of the patent to protect their own rights against others. These rights include suing someone who infringes upon the patent by using, making, or selling an identical or similar thing. Another right the inventor has involves granting others a license to use the patent. It is important to note that 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 to your employer.

Applying for a patent

Before you apply for your patent, you should conduct a search at https://www.ic.gc.ca/opic-cipo/cpd/eng/search/basic.html?wt_src=cipo-patent-main. The search will tell you whether someone else has already patented 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.

After you conduct your search and find that no one else has an existing patent in a similar invention, you may start your patent application. You must follow the steps in this following link to access and start your patent application online https://www.ic.gc.ca/eic/site/cipointernetinternetopic.nsf/eng/wr01477.html

The office regularly rejects applications that are not submitted correctly. Your application must include:

  • An explicit or implicit indication that that granting of a Canadian patent is being sought;
  • Information allowing the identity of the applicant to be established;
  • Information allowing the Commissioner to contact the application (this may be the contact information of your patent agent); and
  • A document in TIFF or PDF format, in any language, that appears on its face to be a description

Other requirements include, a detailed description of your invention, an abstract, at least one claim, any drawing if 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. 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. Once an application is granted, a patent is good for 20 years after the application is filed.

More detailed information about the Canadian Patent system and its requirements can be found at the Canadian Intellectual Property Office (CIPO) website: http://www.ic.gc.ca/eic/site/cipointernet-internetopic.nsf/eng/h_wr00001.html. A list of registered patent agents is available from the Patent Office website at http://www.ic.gc.ca/eic/site/cipointernet-internetopic.nsf/eng/h_wr04549.html. For a certain fee, a qualified agent can act on your behalf with the Intellectual Property Office in regards to your invention.

Canadian Patents

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 can also file an International Patent Application, which allows you to seek protection for your invention in a large number of countries at the same time. For more information, you may visit their website which takes you through the process of the international application https://www.ic.gc.ca/eic/site/cipointernet-internetopic.nsf/eng/h_wr02598.html.

 

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. It is highly suggested that you don’t publicize your invention until you filed for a patent as it may jeopardize the possibility of your patent being granted in other countries. Sometimes there are also conflicts as to who will receive the patent for an invention if there are two inventors who developed the same invention. In Canada and most jurisdictions around the world, the first inventor to file an application will receive a patent.

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