Patent

What is a Patent?

The patent system rewards inventors who make their invention available to the public. The reward is the creation of a monopoly period during which the inventor has the exclusive right to make, use or sell the invention. At the end of the monopoly period, the invention loses its exclusivity and becomes public property. (See also Intellectual Property; Inventors and Innovations.)

In order for a patent to be issued, the inventor must satisfy a rigorous application process and meet some defined criteria. In Canada, the requirements are set out in the Patent Act, which was last extensively amended in 1987.

The inventor must show that the invention is novel (i.e., “new – first in the world”); that is, at the time of filing, the invention was not anticipated or disclosed by any other application before the date of filing (section 27). In addition, the invention must show a benefit which is commercially useful in that is shows an improvement in the technology which is not obvious or mundane (section 1). The Canadian Patent Office determines whether patents should be granted and generally administers the Patent Act

Application Process

The application consists of several parts: the description of the invention in words; any accompanying drawings; and the claims (which eventually define the exclusive rights given to the inventor). The application, if it is to be successful, will show how the underlying “good idea” was conceived, tested and eventually turned into a concrete process that is a significant improvement in the art in question.

The application is received by the patent office and then examined to ensure that it meets the criteria of novelty, utility and inventiveness. This is a rigorous review by examiners who are expert in their own areas. The general categories of invention set out in the Act are art, process, machine, manufacturer, or composition of matter. Within each one there are many subdivisions of expertise. The examiners can raise objections to the application in the form of an Official Action, and the applicant has 6 months within which to respond to the objections; otherwise, the application is dismissed.

As expected, there are many variations on fine distinctions in questions such as “improvement,” “inventive step” and “utility.”

When granted, a patent can last for a maximum of 20 years from the date of filing the application.

Treaties

The 1987 amendments to the Patent Act created a revised system in Canada. The inventor is the person who, with narrow exceptions, is first to file an application that is absolutely novel. To be absolutely novel there must have been no disclosure that caused the invention to become available to the public before the filing date of the patent application. The application process was substantially revised to allow a more expeditious process more in line with Canada's requirements under the Patent Cooperation Treaty, which became enforceable in Canada on 6 January 1980.

As of 1923, Canada is also a member of the Paris Union and is a signatory to the Paris Convention. The two key principles of the Paris Convention are: (1) that nationals of member countries enjoy the same rights under patent law that nationals of other member countries enjoy within their own countries, and (2) that the filing of an application in one member country constitutes a prior act under the law of another member country.

Challenges

A very good example of the need to balance private rights and the public good is the special provisions for patented medicines. The provisions attempt to ensure that patents are not used to deprive the public of necessary medicine substances and that the market is being adequately supplied. The Patent Medicines Prices Review Board may amend excessive prices if it finds that to be the case.

Considerable controversy currently surrounds the question of patentability of life forms. There are difficulties of identifying and preserving the subject matter as well as philosophical questions of how far a monopoly should extend over life forms. The same debate occurs on the international scene, where rules range from an outright ban on such patents to a distinction between lower and higher life forms. According to the Supreme Court of Canada, higher life forms cannot be patented.