What is a patent?

Patents are used to protect certain forms of intellectual property, specifically those classified as “inventions”.

A patent is a document granted by the Government of Canada which gives an inventor the exclusive right to make, use, and sell the invention. A patent protects the rights of the inventor for 20 years, and makes it illegal for other people to make, use, or sell the same invention. You can use your patent to make a profit by selling it, licensing it, or using it as an asset to negotiate funding for your business.

A patent will not keep your invention secret. In Canada, 18 months after you file an application for a patent, the Patent Office at the Canadian Intellectual Property Office (CIPO) will publish your application. This gives other people the opportunity to learn from your invention. If you have a Canadian patent your intellectual property will be protected throughout Canada, but these protections won’t apply to other countries. Likewise, foreign patents do not protect an invention in Canada.

Generally speaking, patents are obtained on a country-by-country basis, although there are some mechanisms by which an applicant can apply for patents for more than one country in a single application.

What can be patented?

An invention can be:

• a product (such as a door lock),
• a composition (such as a new chemical compound used to make door locks),
• a machine (such as a machine that makes door locks),
• a process (such as a method for making door locks), or
• an improvement on any of these.

Criteria for a patent application

There are three criteria you must meet to patent an invention. To be eligible, the invention must be:

1. New,
2. Useful, and
3. Inventive.

For an invention to be “new”, it must be the first of its kind in the world. Further, to be “new” an invention must not be known to the general population of the world before the patent application is filed.

To be “useful”, an invention must work in a practical way, and it must have a useful function.

Lastly, the invention must show inventive originality. This means that the invention must not be obvious to someone who is skilled in the area.

Most patents are issued for inventions that are improvements on already existing patented inventions. An example of this is the various patents filed for improvements to the technology used in headphones.

What cannot be patented?

In Canada, you generally cannot patent such things as mere ideas or discoveries, scientific principles and abstract theorems, architectural plans, features of solely intellectual or aesthetic significance, printed matter, methods of medical treatment, higher life forms (any multi-celled life forms), and forms of energy. However, there are other kinds of protection that you may be able to use to protect these kinds of intellectual property.

Can computer programs be patented?

The law around patents and intellectual property protections changes regularly. For instance, in the past computer programs did not qualify as patentable material. However, that has changed, and certain types of computer programs may now be eligible for patent protections.

New and useful processes that incorporate a computer program, and machines that rely on computer programming, can be patented if they are integrated into the practical system that forms part of a traditionally patentable invention. Additionally, the Canadian Patent Appeal Board has found that a computer algorithm combined with at least one physical element is patentable.

Since abstract ideas are excluded from patent protections, computer-implemented-methods of applying skill or judgment aren’t patentable, and neither are methods of evaluating math formulas. Computer programs that do not fall within these categories may still be eligible to be protected as intellectual property through the Copyright Act, where they are included as a literary work.

Filing an application for a patent is a complicated process. For legal advice and assistance, you should contact a patent lawyer or a registered patent agent.

For the most up-to-date information about patents, refer to the Canadian Intellectual Property Office.

								
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