How do patents work?

GeneralCategory
9 min read
Rachel Wiebe

When you've got a worthwhile idea for a new process or product, then you'll want to make sure that you take out a patent for your invention.

A patent gives you exclusive rights to manufacturing your invention so that other people can’t steal your idea.

As an entrepreneur, you'll want to make sure that your invention has a patent because this will make your product or business idea more attractive to investors. A patent will also protect you from competitors who may want to steal your idea, and it will also give you the rights to sell your idea.

In this article, we're going to take a look at how patents work in Canada, and how you can protect your invention by filing for a patent.

Before we explain the steps, including tips on improving your chances of approval, we’d like to touch on the basics.

Editor’s note: Make sure to nail down the domain name for any invention you're planning to patent — that way, copycats won’t be able to make money off your ideas online. Check to see if your domain name is available by typing it into the box here.

The basics of Canadian patents

In Canada, a patent is a government-issued grant that gives you the exclusive rights to produce, use and sell your invention within Canada for 20 years from the date that you've applied for a Canadian patent.

If you don't patent your invention, then another business could begin manufacturing and selling it, which would create competition for your business. They could even file for a patent, and that would stop you from using or building your own invention, if their request for a patent is approved.

This is why you must file for a patent if you believe that you have an invention that's worth protecting. Once you've patented it, no one else will be able to produce, use or sell your invention in Canada.

What can be patented?

According to the Patent Act, an invention is defined as:

"... any new and useful art, process, machine, manufacture or composition of matter or any new or useful improvement in any art, process, machine, manufacture or composition of matter."

This definition provides a broad overview of which items can be patented. However, for your invention to be eligible for a patent in Canada, you'll need to meet some basic criteria. It must be:

Patent Person Tinkering with Hardware

Novel

This means that your invention needs to be the first of its kind, and it can't have been recorded anywhere else in the world.

Useful and usable

Your invention must be functional and capable of being used, and you must prove it's useful and needed in the world.

Inventive

Your invention should show your inventive powers, and it shouldn't be something that just anyone could figure out.

If you're trying to file a patent for an improvement to an existing product, then you'll need to receive a license from the original inventor. Conversely, the original inventor will need to sign a licensing agreement with you to use your invention.

When to file for a patent

In Canada, there's a 'first-to-file' system, which means that the first person to apply for a patent will usually be the person to own that particular idea. While you may be able to prove that you're the original inventor, you'll lose the 'race to the patent office' if you're not the first person to apply for a patent on your particular idea.

Since Canada has a 'first-to-file' policy, you'll want to file your patent application as quickly as possible.

However, you should wait until your invention is completed or else your product may have missing features that aren't protected by the patent. This can lead to legal battles and patent disputes.

Keep it under wraps

When you're creating an invention, it's important not to advertise or share any information about it before you file for a patent. If you publicize your invention or share information to other people, then you'll jeopardize your chances of winning the race to the patent office.

If you're an entrepreneur trying to get interest from investors, you should make sure that your idea is patented before presenting your invention. This will ensure that you're protected from theft, and it will also make your idea more attractive to the investors.

How to file for a patent in Canada

If you want to patent your invention within Canada, you'll need to file an application. The filing process can be a bit more complicated than it may seem, which might result in your application being rejected. Follow these steps for best results:

1. First, do a patent search

The first step to patenting an invention is making sure that your idea hasn't been created by someone else. If your invention has already been patented, then you won't be allowed to file for a patent.

Before you spend any time or money on your invention, search the Canadian Patent Database.

Patent Woman in Red Cutting Fabric

This database gives you access to over 75 years of products, images and descriptions so that you can determine if your idea has already been invented.

If the Canadian Patent Database shows that your idea hasn't been created yet, you can do an in-depth patent search by travelling to The Canadian Intellectual Property Office (CIPO), which is located in Place Du Portage, Quebec.

Once you're at their service centre, you'll be able to double-check Canada’s patent records in person to see if your idea has already been invented.

2. Next, fill out a patent application

When you're filling out a patent application, you'll need to provide a summary of your invention and a detailed list of its specifications.

The summary should be a brief overview of the invention's specifications.

The specifications part of your patent claim should describe your invention in more detail so that you can get better protection from your patent. If you can, you should also add:

These additions will make it easier for the patent office to process your application.

The Canadian Intellectual Property Office has made it easier for applicants to apply for a patent by providing a tutorial on writing a patent application. You can use this as a guide in drafting a patent application that is written correctly, increasing its chances of being approved.

If you're unsure about filing a patent, you can hire a patent agent who will walk you through the entire process.

The Canadian Intellectual Property Office has published a list of registered patent agents that might be useful in finding one.

3. Send in your patent application

There are two processes that you can use to submit your application for a patent successfully.

Submit your written application via mail

The first option is to send your written patent application through the mail by addressing your application to:

The Commissioner of Patents
The Canadian Intellectual Property Office
Place Du Portage, Phase 1
50 Victoria Street, Gatineau, Quebec
K1A-0C9

For those wary of digital eavesdropping, this might be a preferable option.

Create a digital patent application

To create and submit a digital application for your patent, you'll need to create an account with Industry Canada.

Once you've created an account, you can then begin creating and filing your patent application. With this digital patent process, you'll be able to add photos, digital drawings and schematics along with your patent application, which could help your case with the patent office.

Remember that filing a patent application doesn't mean that your application will get approved.

If you've successfully filed a patent application, it just means that your application is pending and will be reviewed by the patents office.

4. Finally, request a patent examination

For your application to be reviewed, you must request a patent examination within five years of filing your application. This is usually a written letter that requests that the CIPO examine your patent application, which is attached to your application fee.

If you do not request an examination of your application, your application will be abandoned.

In this case, you'll need to submit another patent application. Keep in mind that it can take up to two years for your patent application to be processed by The Canadian Intellectual Property Office.

Patent Laboratory Test Tubes

What happens next

Once you've submitted your application and a request for examination, your patent will be processed. During this period, a patent examiner will review your case and approve or deny the application.

If your application has been denied, then you'll be able to respond to the examiner's objections. The examiner will then reconsider your case, and your application will be reviewed again. Usually, this process continues until you get your application approved, or the examiner finally closes your case.

Don’t take chances — protect what’s yours

If you have an idea that's worth protecting, then you may want to use a patent to stake your claim. A patent will give you the sole right to use, make and sell your invention throughout Canada for 20 years after your application date.

Always remember to finish developing your invention before you file for a patent so that the key features will be covered by your patent. You'll also want to file for a patent before you pitch your idea to investors so that your idea doesn't get stolen, and you don't ruin your chances of getting approved for a patent.

For a more detailed explanation of how patents work within Canada, you may want to refer to CIPO's Complete Guide To Patents. This patent guide will have all of the resources that you need to file your patent successfully.

This post should not be taken as legal advice. When in doubt, consult a patent lawyer for professional guidance.