What is a patent?
A patent gives its owner (the patentee) the exclusive right to make, use, or sell the invention claimed in the patent. Anyone who, without permission, makes, uses, or sells in Canada the claimed invention, infringes the patent.
Physically, a patent is a document issued by the government which sets out what the invention is and how you go about making it. The patent also contains a set of claims, which describe that in which the patentee claims to have an exclusive right. To be liable for patent infringement, the infringer must be doing what the claims describe. (Although this sounds simple in principle, patents are not pleasant documents to read. They are usually highly technical and the claims resemble single sentences which run for a paragraph containing very bad grammar; however, drafting them is truly an art form.)
Patents are granted by the government as part of a \”bargain\” between the inventor and the public. In exchange for the right to prevent other people from using her invention for a certain period of time, the inventor gives to the public all the information needed to make her invention, so that others may engage in research and development built on her work.
What can be protected by patent?
Patents are granted for new and useful inventions, consisting of any art, process, machine, manufacture, or composition of matter, or a new and useful improvement over one of these items. An invention can include techniques or methods, chemical compounds, new uses for chemical compounds, machines, and micro-organisms.
Some types of subject matter are specifically excluded from patents. Matter that is properly protected under other statutes, such as industrial designs, trade-marks, copyright, integrated circuit topographies, and new plant varieties, is excluded. Natural phenomena, scientific principles, and abstract theorems, are not inventions, although they may be newly discovered; a novel application of a phenomenon, principle, or theorem, though, is patentable. Methods of medical treatment are also excluded, although the tools or drugs used in medical treatment are patentable. Higher life forms (i.e., mammals) are also currently excluded, as a result of the Supreme Court\’s interpretation of the definition of \”invention.\”
In order to obtain a patent, the invention must be new, useful, and non-obvious.
New means that the invention must not have been available to the public, anywhere in the world, before the patent application is filed. Outside the United States and Canada, there is effectively a prohibition against obtaining a patent if the invention is shown at all to customers first, for example. In the U.S. and Canada, there is a grace period for disclosures by the inventor or someone who obtained information from the inventor. In that case, a patent application must be filed within one year of disclosing the invention or it will cease to be new.
Useful means that the invention must work. It does not have to work well, but it must at least do what the inventor says it will do.
Non-obvious means that the invention must be inventive. There must be something to the invention that sets it apart from what others have been doing in the relevant field, which would not have occurred to the ordinary skilled worker to do.
Just like a copyright or an industrial design, the patentee or the licensee must enforce their rights against infringers themselves.
How do you get a patent?
Patents do not arise \”automatically\” like copyright. It is necessary to obtain a patent through a lengthy application process.
The applicant must draft a specification, which includes the disclosure (the part that explains what the invention is and how it works) and the claims (the part that explains what the applicant says are its exclusive rights). This specification, together with a formal request for a patent, is sent to the Patent Office together with an application fee. Unless the applicant specifically requests it, the application essentially lies dormant for 18 months (a confidentiality period). After 18 months, or earlier if the applicant requests it, the application is published so that any member of the public may read it. The application is then examined to determine whether it meets the statutory requirements (stylistic requirements, novelty, non-obviousness, utility) and amendments are made, if necessary. Eventually, the application is either rejected by the Patent Office, or it is allowed and upon payment of a final fee the patent is issued.
On average, this process takes two to three years and costs several thousand dollars (if the applicant hires a patent agent to draft and prosecute the patent application; the applicant can always try to do it him or herself).
Where and for how long is a patent effective?
The exclusive rights granted by a patent now expire 20 years after the date the application was filed. For certain patents that were issued from older applications, the term is the longer of the 20-year term, or 17 years after the date the patent was actually granted.
Patents are territorial. Each country may only issue a patent which is effective within its own jurisdiction. An applicant may apply in as many countries as it chooses, and there are mechanisms in place to facilitate applications in multiple countries at once. However, to obtain a patent in each country, the applicant must satisfy the legal requirements in each country, which may vary.