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Patent — FAQ

Your hard work and ingenuity has paid off, and you’ve created an exciting new invention. Now you need to protect it from copycats and thieves. You need a patent.

The patent process can be complicated, but don’t be discouraged. It’s an investment to protect your hard work and patent agents can help you navigate the road. 

Here are some of the basics about protecting your creation:

What is a patent?

A patent is legal protection for something you’ve invented. It gives you the right to prevent others from selling, making or using your creation for a limited period of time.

In return for that protection, an inventor fully discloses the details of the invention to the government. Those details become available to the public, but nobody else can copy your product for 20 years.

What can I patent?

In Canada, you can patent any new, useful and inventive art, process, machine, manufactured item or composition of matter, or any new and useful improvement to those.

Does your creation meet the criteria for “new, useful, and inventive”?

New: Is it the first of its kind? Check with the Canadian Intellectual Property Office. Its online database covers more than 90 years of patent information.

Useful:
Does it work?

Inventive:
Does it show ingenuity? This is a contentious area. The legal term for this is “non-obviousness” and disputes over just what is “obvious” have gone as far as the Supreme Court of Canada.


Some general guidelines for “obviousness” are provided by the CIPO:

  • Simply changing the size of an existing invention.
  • Just using an existing invention for a new but similar purpose.
  • Combining existing inventions without producing a new mode of operation. Your combination toaster/coffee-maker might make breakfast more efficient, but it’s not really a new creation.

According to the CIPO, 90 per cent of patents are improvements on existing inventions. If you have an improvement on an existing product someone else holds the patent for, you need that person’s permission to patent your improvement.

You can’t patent an idea, only the concrete expression of one. For example, scientific theories can’t be patented, but a new scientific device can.

When should I apply?

Canada uses a “first-to-file” system, so it’s a race to the patent office. It’s not enough to invent something first, you have to file the application first as well.

Once you file, you have 15 months to complete the application. However, your invention should be well-developed at the time of submission.  It doesn’t have to be perfected when you file, but you can’t make significant additions or changes to an existing application.

If you do make big changes, you have to re-file your application.

Could re-filing my application lose my “first-to-file” status?

Not if you do it promptly enough. If you re-file within 12 months of your first date, you can request priority, which means you can keep your original application date and your spot at the front of the line.

How long does my patent last?

Your patent is active for 20 years from the date of your application but you must pay maintenance fees to keep it active. Canada’s Patent Office won’t send you any reminders, so don’t forget about the fees or else your patent may lapse.

How much does it cost?

There are multiple costs involved in gaining patent protection, including filing fees, examination fees, grant-of-patent fees and yearly maintenance fees.

Does my patent apply worldwide?

No, but it’s possible to gain protection in most countries without filing separate applications in each. Under the Patent Cooperation Treaty, you can file a single application that, if accepted, can grant patent protection in the 148 participating countries.

 

Further reading:

Canada’s Patents database: http://brevets-patents.ic.gc.ca/opic-cipo/cpd/eng/introduction.html

Requirements for filing a patent in Canada: http://www.cipo.ic.gc.ca/eic/site/cipointernet-internetopic.nsf/eng/wr00315.html

More about the World Intellectual Property Organization and the Patent Cooperation Treaty: http://www.wipo.int/portal/en/

Maintenance fees: http://www.cipo.ic.gc.ca/eic/site/cipointernet-internetopic.nsf/eng/wr01084.html#no24.02

Patent agents list: http://www.ic.gc.ca/cipo/pa-br/agents.nsf/pagents-eng?readform