Patent Your Innovation in Canada
Published on 29 August 2022, 07:22:56 AM
Inventions may be a dime a dozen but patents aren’t. Your next new thing must conform to Canada’s Patent Act and Patent Rules to get approved. Before you book your Dragon’s Den appearance, you’ll need a patentable subject that is novel, useful and not obvious, and a patent agent.
What Could Possibly Go Wrong
Budding inventors file their applications with the Canadian Intellectual Property Office (CIPO), where patent examiners review them. It’s not as easy as it sounds. AstraZeneca Canada was successful in defending its patent for a salt used in Nexium by a mere “scintilla” (tiniest trace) of evidence. The 2017 Supreme Court of Canada decision on the popular, over-the-counter heartburn remedy set the standard for how judges decide if patents meet the utility test.
Is Your Idea Patentable?
In fact, your patentable innovation must meet three tests:
- Novelty — the first of its kind
- Utility — it actually works
- Inventiveness — it’s new or improved technology.
What You Can Patent
You can patent an art, process such as diagnostic methods, composition of matter like molecules, machine or manufacture. Improvements or new uses for existing patents that achieve similar or dissimilar results are patentable. For example, if your novel computer program improves the operating system, a patent could be in your future. If it’s just code, not so much.
No Patent Possible
Other inventions that generally don’t make the grade:
- ideas
- concepts
- ways of doing business
- social or professional skills
- medical treatments
- theories
- scientific principles
- energy forms
- or higher life forms.
Your Canadian Patent Rights
Holding a valid Canadian patent entitles you to 100% of the profits from your invention. It gives you “the exclusive right, privilege and liberty of making, constructing and using the invention and selling it to others” (Patent Act, 1985). Anyone else who tries to copy, sell or use it can be sued. Dow Chemical won $645 million in 2017 for a 10-year infringment of its patent for polyethylene used in food packaging, heavy duty bags or to wrap pallets.
Have You Left Yourself Vulnerable to Infringements?
If your product is already for sale and other inventors could copy it, you could start the clock ticking on how long you have to apply for a patent. By making your invention available for sale, you disclose that it exists. Copyists require no inventive skill or “undue burden” to figure out how it works or reverse engineer it.
A Year’s Grace for Publicly Disclosed Inventions
Here’s how it works: You publicly disclose the invention by talking or writing about it, selling it or using it in another product that’s for sale. You have one year from that point to file for a Canadian patent.
Patent Early, Patent Often
Since patent law is based on who’s first to file for a patent, your invention must be new on the date you apply. Once you promote, sell or publicly use an invention, it’s no longer new or novel. Your invention is considered “prior art” (it existed before you applied) and others can patent improvements to it. The upshot: apply early and stay mum until you have your patent.
Proving an Invention Works
Wild ideas are fun. Can you realistically meet the “utility” test of a patent application? Practicality matters. Ideas that aren’t useful and can’t be reproduced typically aren’t patentable. You won’t necessarily have to make a prototype. But your application does have to describe how your invention would work if it was built.
Testing Your Predictions
Every inventor makes promises. Predicting your invention will achieve the results you promised is another thing. Include the facts you are using to make your prediction with your patent application. Show how you got from the factual basis to your prediction. Most importantly, attach drawings that show skilled professionals how to make and use your innovation.
Don’t Just State the Obvious
Is your invention too obvious? Could anyone with your skill set invent it? Then it’s likely not patentable. Don’t make your innovation too predictable or common. Think about what makes your invention different from current products or patents. Reputable patent agents can advise you on avoiding obviousness and ensuring your innovation is truly unique.
Find Other Canadian Inventions
Many Canadian patents (up to 90%) are innovations to existing products. Others are genuinely an eureka! moment. Before you file your application, try searching others. CIPO’s Client Service Centre allows in-person searches or you can go online to view more than two million Canadian patent grants and applications. Patent applications are generally posted to CIPO within 18 months of being filed.
Reaching a Licensing Deal With Other Inventors
Warning, when you patent a new and improved way of using someone else’s invention, you may be infringing on their patent. Patent owners can prevent you from profiteering from their invention for up to 20 years. Instead of giving up, use a patent agent or lawyer to strike a licensing agreement with the patent owner. It’s a win-win for both of you.
Court Affidavits Witnessed Online
Axess Law Ontario notary publics witness court affidavits for patent infringement lawsuits. Make an online video call with a remote notary anywhere in Ontario. Appointments are available day or evening, 7 days a week, by calling toll-free to 1-877-522-9377 or in Greater Toronto at 647-479-0118 or using our online booking form. Licensed lawyers can meet with you in person at our Ottawa, Toronto, Scarborough, Vaughan, Etobicoke, Mississauga Winston Churchill or Mississauga Heartland law offices.
Click here to learn more about Axess Law’s notary public services.
