What is a patent?
From: Canadian Intellectual Property Office
Through a patent, the government gives you, the inventor, the right to stop others from making, using or selling your invention from the day the patent is granted to a maximum of 20 years after the day on which you filed your patent application.
On this page
- Canadian patents
- What you can patent
- What you can't patent
- Patents protect your intellectual property
- Patents fuel progress
- Patents can be valuable
- Use a patent agent
In Canada, the first applicant to file a patent application for an invention is entitled to obtain the patent. You should file as soon as possible after you complete an invention in case someone else is on a similar track.
The rights given by a Canadian patent extend throughout Canada, but not to other countries. You must apply for patent rights in other countries separately. Likewise, foreign patents do not protect an invention in Canada.
What you can patent
Patents apply to inventions. An invention is eligible for patent protection if it is:
- new—first in the world
- useful—functional and operative
- inventive—showing ingenuity and not obvious to someone of average skill who works in the field of your invention
The invention must also be:
- a product (example: a door lock)
- a composition (example: a chemical composition used in lubricants for door locks)
- a machine (example: a machine for making door locks)
- a process (example: a method for making door locks)
- an improvement on any of these
For details on what can be patented, see Chapter 17: Statutory Subject-Matter in the Manual of Patent Office Practice (MOPOP).
Computer code and computer-implemented inventions
Computer code by itself is not something physical and therefore not patentable by law.
A computer program may be patentable if it offers a new and inventive solution to a problem by modifying how the computer works.
What you can't patent
Some things that can't be patented include:
- disembodied ideas, concepts or discoveries
- scientific principles and abstract theorems
- methods of medical treatment or surgery
- higher life forms
- forms of energy
- features of solely intellectual or aesthetic significance
- printed matter
For details on what you can't patent, see Chapter 17.03: Excluded Subject-Matter in the MOPOP.
Patents protect your intellectual property
Protection against infringement
Patent infringement happens if someone makes, uses or sells your patented invention without your permission in a country that has granted you a patent.
If you believe your patent has been infringed, you may sue for damages in an appropriate court. The defendant may argue that infringement did not occur or may attack the validity of your patent. The court will decide who is right based largely on the wording of the claims. If what the defendant is doing is not within the wording of any of the claims of your patent, or if the patent is declared to be invalid for any reason, there is no infringement.
Note: Protection against infringement is limited in some cases. Patent lawyers can help identify when infringement is applicable. You can limit your risk of infringement by paying the maintenance fees or requesting examination on time.
Protection before and after grant
When you have a Canadian patent, you'll possibly be able to sue infringers for all damages that occurred after your patent was granted. Also after the grant, you may sue for "reasonable compensation" for infringements that occurred in Canada between the date your application was made available for public inspection in English or French (normally this is 18 months after the filing or priority date) and the date your patent was granted.
Patent marking and "patent pending"
The Patent Act does not require that articles be marked "patented"; however, in Canada, marking an article as patented when it is not is illegal.Footnote 1
You may wish to mark your invention "Patent applied for" or "Patent pending" after you have filed your application. These phrases have no legal effect but may warn others that you'll be able to enforce your exclusive right to make the invention once a patent is granted.
Patents fuel progress
When you apply for a patent, you must provide a full description of the invention so that others can benefit from this advance in technology and knowledge. Patents are a way for people to share cutting-edge information. Each patent document describes a new aspect of a technology in clear and specific terms and is available for anyone to read. This makes it a vital resource for businesses, researchers, academics and others who need to keep up with developments in their fields.
People may then read about your invention, though they can't make, use or sell it without your permission while your patent is in force.
Patent applications are open to public inspection 18 months from the earlier of:
- the filing date in Canada
- the filing date in another country if you request it and satisfy certain conditions
Patents can be valuable
Patent protection applies in the country or region that issues the patent. In Canada, a patent lasts for 20 years from the date that you file it. Patents can have a great deal of value. You can sell them, license them or use them as assets to attract funding from investors.
Use a patent agent
Most experts agree that inventors should use the services of a registered patent agent to help with the complexities of patent law. In fact, more than 90% of patent applications are filed with an agent's support.
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