All about Patents

Authored by Shazaib Rashid, UCalgary Law, JD Candidate 2024

Patents play an important role in both promotion innovation and economic growth. In Canada, patent law is governed by the Patent Act[1], a complex series of rules and regulations which came into force in 1869. A Patent is a type of intellectual property, that provides the owner the sole and exclusive right to making, using, or selling their innovation. In Canada, the first applicant to file a patent application for an invention will be entitled to obtain patent protection for that invention. This protection lasts up to 20 years starting from the date of filing.[2] Additionally, a patent application must be filed or registered in each country where patent protection is desired.
 
The Patent Act defines an invention as “any new and useful art, process, machine, manufacture or composition of matter or any new and useful improvement in any art, process, machine, manufacture or composition of matter.”[3] Although the definition is broad and would cover a broad variety of different item, there are specific criteria that must be met to receive a patent. To be patentable in Canada an invention must meet three main criteria: new, novel and non-obviousness.[4] First the invention must new, to be considered novel the invention cannot have been disclosed in such a manner as to have become publicly. However, this does not mean that you need to re-invent the wheel you can patent a combination of old inventions as long results in the production of a novel invention. Second the invention must also be useful, to be useful the invention for the purpose which it was designed. An invention has utility if: (a) it gives a benefit to the public; (b) it is useful in achieving a particular purpose; (c) it makes a process better or cheaper; (d) it is advantageous under certain circumstances; and (e) it works.[5] Lastly the innovation must non-obviousness or inventive ingenuity, this requirement was added originally through case law[6] and now by statute.  The invention cannot be obvious to a hypothetical individual, someone who possesses the relevant technical experience and knowledge.
 
The typical process to obtain a patent is as follows: Applicants prepare and file the application; If you are considering a patent the typical process to obtain a patent is as follows: Applicants prepare and file the application; Applicants must then request if the invention is new by searching prior art; The examiner looks for possible defects or issues in the application and may send a report to the applicant if there are any; The applicant files a correction or response to that report. If there are still defects, the examiner can issue another report.[6] If you are considering it is also recommended that one consider hiring a patent agent and/or IP lawyer to help them.
 

[1] Patent Act, RSC 1985, c P-4

[2] Ibid, s. 44

[3] Ibid.

[4] Donald M. Cameron “Canadian Patent Law Primer” (2012) at pg. 7, online (pdf): < patweb00.pdf (jurisdiction.com)>

[5] Ibid at pg. 9

[6] Government of Canada, “Filing a patent application: the devil is in the details” (02 February, 2022). Online: Canadian Intellectual Property Office <https://ised-isde.canada.ca/site/canadian-intellectual-property-office/en/corporate-information/blog/filing-patent-application-devil-details>