Canada, we increasingly hear, is becoming a global leader in high-tech innovation and entrepreneurship. Report after report has ranked Toronto, Montreal, Waterloo, and Vancouver among the world’s most up-and-coming tech hubs.
Vancouver placed number one in greatest rising markets and Toronto placed third in a ranking of North American tech talent this past summer.
Gone are the days when tech was the domain of Silicon Valley and Seattle.
Canada is up there with the new tech havens and is actually experiencing a brain gain in the industry. According to Forbes, tech talent has been arriving in the country in record numbers in recent years.
With that being said, and the spotlight on Canada, we think it’s necessary to understand what the patent process is like in the Canadian system. This information could be instrumental in executing your operations, marketing, and IP strategies.
Let’s take a look at Canadian patent law and then evaluate some key differences with the American patent system — especially for software.
How to Patent in Canada
There are six steps to obtaining a patent in Canada:
Find out if your invention can be patented
Do a patent search
Prepare a patent application
Submit your patent application to the Canadian Intellectual Property Office (CIPO)
Request examination of your patent application
Complete the examination process
Looks quite simple, doesn’t it?
But unfortunately, getting a patent is one of those things that even when things seem certain, something can go wrong — it's quite a bit more complicated than it looks at first glance.
So, let’s look at how to patent your invention in more detail.
What You Can Patent
Before doing anything, try to find out if your invention meets the basic criteria for patentability — there are four basic criteria: patentable category, novelty, utility, and inventiveness:
Patentable category — your invention has to be in a category that is patent-worthy, such as hi-tech, drugs, chemicals, electronic devices, mechanical devices, and some (but not all) software
Novelty — to be granted a patent, the invention must be the first of its kind in the world
Utility — a valid patent cannot be obtained for something that does not work or that has no useful function
Inventiveness — to be patentable, your invention must have a “wow” factor - something that would not have been obvious to someone working in your area of specialty.
Your invention can be a new development or an improvement of existing technology, as long as it meets the above criteria. In fact, in Canada, the majority of patents are for improvements on existing patented inventions!
To be granted a patent in Canada, your invention can be:
A product
A composition
A machine
A process
An improvement of any of these
Some inventions can be protected in more than one way.
For example, software can potentially be protected as a process (series of steps), or a product (computer-readable medium, system, or apparatus).
In Canada, patents are granted to the first to file an application, so it is smart to file as soon as possible after you complete your invention in case someone else is on a similar track. Even if you can prove that you thought of the invention first, you can still lose the race if a competing inventor files before you do.
So, where to start?
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The Patent Process
Step 1: Do a Patent Search
You can’t patent something that’s already been patented, right? So, the first step to getting a patent is to do a patent search.
How?
Go to the Canadian Patents Database and conduct a preliminary patent search. It will let you access over 75 years of patent descriptions and images, which may be as far as your patent search has to go. Many potential patent applications end here when people find that their invention is already patented.
For searches that include international patents, try Espacenet - a service from EPO (European Patent Office). Remember — prior art includes anything that is publicly available, anywhere in the world, before you file your patent application.
You can also perform a more extensive patent search by visiting CIPO’s Client Service Centre in Quebec, in person — or hire a patent agent to do this for you.
Step 2: Complete a Patent Application
The patent application must at least include a specification, and often also includes drawings. The specification has three parts: the description of the invention, the claims, and the abstract.
The abstract is a brief summary of the description. The description must be a clear and complete description of the invention. The claims define the boundaries of patent protection.
The patent application also often includes drawings to show examiners exactly how your innovation operates.
The challenge, however, is to draft claims so your invention is defined broadly enough to provide maximum protection while at the same time being specific enough to identify your invention by making sure it’s different from all previous inventions.
Tricky.
The Canadian Intellectual Property Office provides a very useful tutorial on writing a patent application which explains how to write each section. You’ll likely want to read their official Guide to Patents.
The CIPO highly recommends engaging the services of a registered patent agent to complete and follow through on your patent application — in their words, “preparing and following through on a patent is a complex job that requires a broad knowledge of patent law and Patent Office practice.”
Step 3: Submit your Patent Application
Very unique to patenting in Canada, your complete patent application must be accompanied by a Formal Petition asking the Commissioner of Patents to grant you a patent.
You can either submit your complete patent application in writing with the appropriate fee or, create an electronic application for a patent. To do this, you must create an account with Industry Canada and attach digital documents such as technical drawings and other documents to your application.
Note that this is no guarantee of a patent — it simply means your application is pending. It also doesn’t mean your patent application is automatically examined — remember, in Canada, you must request to have your patent examined.
Step 4: Request Examination of Your Patent Application
You must request examination of your patent application within five years of the Canadian filing date and pay the appropriate fee.
If you don’t request an examination of your application, it will be considered to be abandoned!
Keep in mind, the CIPO advises that it may take up to two years for a patent to be examined, even once the request has been filed, because of the large number of requests they receive.
However, it is possible to ask for a faster examination of your patent application, but an additional fee is required. To do this, you must already have made a request for examination and your patent application must have already been open to the public for perusal (which happens automatically 18 months after the filing date or priority date).
Anyone can raise questions or objections about your patent application until the patent is officially examined.
What Happens After Filing?
Well, a patent examiner will study your claims and either approve your patent application or object to some, or all, of your claims.
You will have a chance to respond to the objections if this is the case, and if so, your patent application can be reconsidered.
This process may go on several times before your patent application is accepted or ultimately, denied.
Over To You
While the patent process seems quite straightforward, it does have its intricacies and we always recommend seeking professional help.
Canadian and American patent law do share many similarities but there are key differences that justify involving a patent agent to conduct a review before filing to the corresponding offices.
Such counsel and advice are likely to result in broader claims, fewer rejections, and faster approvals during prosecution, and more efficient litigation, thereby saving you time, aggravation, and unnecessary expenses.
Don’t hesitate to contact us if you have any confusion, doubts, or even if you just have a simple question — we’re here to help and we’re always excited to lend a hand.
Wondering if your idea is patentable? Have a question about this article? We can answer all of your questions — just hit "contact us" down below!
