Applying for a patent is a complicated process and you should contact a registered patent agent for assistance.

In Canada, there are four main steps in the application process and it will usually take two to three years to complete. The four application steps are: filing the application, a request for examination, a prosecution of examination, and the granting of a patent. There is a fee that must be paid for each step in the process. Individual inventors or small businesses pay one amount, all other applicants will pay more.

Filing the application

The first step is to file the application with the Patent Office at the Canadian Intellectual Property Office (CIPO). Applications will be accepted for filing whether or not they are complete. If your application is complete, it will be assigned a number and a filing date. The Patent Office will issue a filing certificate that contains this information. Your lawyer or patent agent will keep a record of the number assigned to your application and refer to it in all correspondence with the Patent Office.

Incomplete applications

If the application is incomplete but still provides certain basic details, it will still be assigned a number and a filing date. Applicants will be notified of any missing documents or information and will be required to submit the outstanding documents or information within two months of the date they are notified. If you respond by the deadline, your filing date becomes the latest date that CIPO received the last missing document that was a requirement to establish a filing date. If they do not receive the documents, the application will be considered abandoned.

Requesting an examination

The second step is to request an examination and pay an examination fee. The length of time an applicant has to request an examination depends on the date the patent application was filed:

• If a patent application was filed on or after October 30, 2019, the request for an examination must be submitted in writing to the Patent Office within four years of filing the patent application.
• If the application filing date is prior to October 30, 2019, applicants have five years from the date of filing to request the examination.

Prosecution of examination

After the request for examination has been made, the patent examiner will review your application. The examination process may take two or three years. However, if you request expedited prosecution, a case can be reviewed within a few months.

The examiner will review the claims and ensure that your invention is new and non-obvious. The examiner will search for prior art, which is anything of a tangible nature that can be used to dispute your claim of originality, such as a similar invention already in use. If the examiner has no objections to your application, then you will be granted a patent. There is rarely an application that does not have any objections.

If the examiner has objections about some aspect of your application, your patent agent will receive a report or letter of objection, called an ‘examiner’s report” or Patent Office action, from the Patent Office. However, this is not the end of your application. You are given an opportunity to respond to the objection and, if the examiner is satisfied with your response, then the application will be allowed.

Time to respond to examiner’s report

• for examiner’s reports issued on or after October 30, 2019, after the date the report was mailed to respond
• for examiner’s reports issued before October 30, 2019, you have six months after the date the report was mailed to respond

Your patent agent is experienced in responding to objections. The process of receiving and answering objections may be repeated several times.

If the examiner’s objections cannot be satisfied, your application will be rejected. You or your agent can appeal this decision to the Commissioner of Patents at the Patent Appeal Board. Your patent agent can help you file an appeal.

If you don’t respond to the reports, your application will be deemed to be abandoned.

Granting a patent – Allowance

If the examiner allows your application and indicates a willingness to grant you a patent, your patent agent will receive a Notice of Allowance by mail and notification that payment of the final fee must be made. On average, it takes approximately two years from the filing of an application to get a patent.

The final fee to be paid is due:

• four months from the date of a Notice of Allowance issued on or after October 30, 2019
• six months from the date of a Notice of Allowance issued before October 30, 2019

Patent law and the patent application process are both complicated and technical, and you should contact a registered patent agent to assist you with your application.

For help

Click here to find a patent agent from the Canadian College of Patent Agents and Trademark Agents. For the most up-to-date information about the patent process, including current government fees, refer to the Canadian Intellectual Property Office.

								
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