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PATENT LAW IN
CANADA
This article gives a general description of patent law in Canada.
The information contained in this article is of a general nature only
and is not intended to cover the entire area of law relating to patent
law in Canada. Furthermore, this information is not directed toward a
particular factual situation, and does not constitute legal advice. If
you have any questions of a legal nature, or of how the law applies in a
particular situation, please consult with a Canadian patent lawyer or with a Canadian Registered patent agent.
Canadian patent law provides inventors (or their
assignees or legal representatives) with an opportunity to protect their
“invention” in Canada by means of a Canadian patent.
A Canadian
patent provides the patent owner with the exclusive right to make, sell
and use the patented invention in Canada throughout the life of the
patent (to also obtain patent protection in other jurisdictions, a
patent must also be obtained in those other jurisdictions).
The
Canadian Patent Act provides that an "invention" is “any new and useful
art, process, machine, manufacture or composition of matter, or any new
and useful improvement in any art, process, machine, manufacture or
composition of matter”. To be patentable, an invention must also be
non-obvious. The Canadian Patent Act specifically excludes from patent
protection mere scientific principles or abstract theorems.
An
example which the Canadian Patent Office uses is as follows:
“The invention can be a product (such as a door lock), a
composition (such as a chemical composition used in lubricants for door
locks), an apparatus (such as a machine for making door locks) or a
process (such as a method for making door locks), or an improvement on
any of these”.
A patent contains a description of the invention
(often including one or ore drawings) followed by one or more claims
which define the scope of protection provided by the patent.
As
set out in the Patent Act, the description must (a) correctly and fully
describe the invention and its operation or use as contemplated by the
inventor; (b) set out clearly the various steps in a process, or the
method of constructing, making, compounding or using a machine,
manufacture or composition of matter, in such full, clear, concise and
exact terms as to enable any person skilled in the art or science to
which it pertains, or with which it is most closely connected, to make,
construct, compound or use it; (c) in the case of a machine, explain the
principle of the machine and the best mode in which the inventor has
contemplated the application of that principle; and (d) in the case of a
process, explain the necessary sequence, if any, of the various steps,
so as to distinguish the invention from other inventions.
A
complex scheme (which is set out in Sections 28, 28.1, 28.2, 28.3 and
28.4 of the Canadian
Patent Act) is used to determine whether a particular patent
application was filed soon enough to be eligible for patent protection
in Canada. Because the failure to file a patent application on a timely
basis will result in the loss of patent rights, and because the
complexity of legal scheme set out in the Patent Act is beyond the scope
of this article, it is strongly recommended that inventors who may wish
to obtain Canadian patent rights for their invention contact and retain
the services of a Canadian patent lawyer or patent agent very early on
in the invention/development process and certainly prior to any
disclosures of their invention to ensure that their Canadian and
international patent rights will be protected.
In addition, the
drafting of a patent application and the process of dealing with the
patent office are very complex legal tasks which require significant
professional skill and knowledge of Canadian and international law and
procedure. For these additional reasons you are strongly encouraged to
retain the services of a patent agent or patent lawyer to assist you in
this process.
A list of Canadian patent agents may be found at
the Canadian Patent Office.
ABOUT THE AUTHOR
Philip B. Kerr is a Canadian patent lawyer, a Registered patent agent and a Registered trademark agent. He is a partner in the patent law firm of
Kerr & Nadeau, whose law practice is restricted to patent law, trademark law and copyright law. He was called to the bar in 1986.
Kerr & Nadeau has two locations:
Ottawa Location
190 O'Connor Street
Suite 610
Ottawa, Ontario
Canada K2P 2R3
Phone: (613)-238-2002
Fax: (613)-230-2725
Halifax Location
1959 Upper Water Street
Purdy's Wharf, Tower I, Suite 1301
Halifax, Nova Scotia B3J 3N2
Phone: (902) 422-6376
Fax: (902) 422-9149
Email: info@kerrnadeau.com
For further information on patents, please contact Philip B. Kerr.
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