Canadian patent law

Canadian patent law is the legal system regulating the grant of patents on inventions within Canada. Patents are in the sole jurisdiction of the federal government and is governed by the federal "Patent Act".

A patent is a government grant that gives the inventor and its assignees the exclusive right to the construction, use and sale of the invention. ["Patent Act", s. 42.] In Canada, patents are granted to the first inventor to file an application on an invention. [cite web |url=http://www.cipo.ic.gc.ca/epic/site/cipointernet-internetopic.nsf/en/wr00141e.html#pt_faq05 |title=Frequently Asked Questions - Patents |accessdate=2008-07-30 |author=Canadian Intellectual Property Office] Canadian patents are granted for a maximum of 20 years.

Definition of a statutory invention

To be considered patentable, an invention must pass three criteria: novelty, utility, and ingenuity. [cite web |url=http://www.cipo.ic.gc.ca/epic/site/cipointernet-internetopic.nsf/en/wr01094e.html#sec2-1 |title=What can you patent? |accessdate=2008-07-30 |author=Canadian Intellectual Property Office]

Novelty

An invention must be a "first in the world" to be a novelty. For this to be true, the invention must not have been anticipated by an existing patent or publication. The test is whether or not a single, publicly available example of prior art that "contained all of the information which, for practical purposes, is needed to produce the claimed invention without the exercise of any inventive skill". ["Beloit Canada Ltd. v. Valmet Oy" (1986), 8 C.P.R. (3d) 289 ] If such previous documentation exists then the patent is generally not valid.

In Canada, there is one exception to the previous documentation rule: the grace period. If information regarding the invention was made public by the inventor within one year prior to filing for the patent, that information cannot be used to show a lack of novelty. ["Patent Act", s.28.2(1)(a)]

Utility

For a product to have utility it must perform some useful function. The requirement for utility originates from the definition of invention as a "new and useful art" ["Patent Act", s.2] The requirement is generally easy to meet, however, it does limit the scope of protection by excluding methods that would not be useful.

Ingenuity (non-obviousness/inventive ingenuity)

The test for a non-obvious invention is whether an "unimaginative skilled technician, in light of his general knowledge and the literature and information on the subject available to him on that date, would have been led directly and without difficulty to [the] invention." ["Beecham Canada Ltd. v. Procter & Gamble Co.", (1982) 61 C.P.R. (2d) 1 (F.C.A.) at 27]

Subject matter

There are number of matters that cannot be patented. Among such matters include certain new plant matters [Pioneer Hi‑Bred Ltd. v. Canada (Commissioner of Patents), [1989] 1 S.C.R. 1623] , computer programs, [Schlumberger Canada Ltd. v. Commissioner of Patents (1981) 56 C.P.R. (2d) 204 (FCA)] and medical treatments within the body (diagnoses based on, for example, blood tests, are patentable). [Tennessee Eastman Co. v. Commissioner of Patents, [1974] S.C.R. 111]

The list of prohibited matters notably differs from the United States with respect to software patents. Under the Canadian system, the algorithms of a software program cannot be patented, but the software as a whole can protected by copyright.

Public access

In Canada, all patent applications are made public eighteen months after filing. The goal of public access is to give the public the ability to learn new technological information while protecting the right of the inventor to profit from the invention. [cite web |url=http://www.cipo.ic.gc.ca/epic/site/cipointernet-internetopic.nsf/en/wr01094e.html#sec1 |title=What is a patent? |accessdate=2008-07-30 |author=Canadian Intellectual Property Office]

Notes

See also

* Canadian Intellectual Property Office (CIPO).
* "Manual of Patent Office Practice" (MOPOP).
*

External links

* [http://www.cipo.ic.gc.ca/epic/site/cipointernet-internetopic.nsf/en/h_wr00001e.html Patents] at the Canadian Intellectual Property Office

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