A patent is an official document issued by the Canadian Government giving the owner the right to exclude others from making, using, offering to sell or selling his or her invention in Canada for the life of the patent. A patent provides protection for inventions. An invention is defined as "any new and useful art, process, machine, manufacture or corporation of matter, or any new and useful improvement in any art, process, machine, manufacture or composition of matter". Patent Protection is only available in a registry system. Rights only arise on registration of the application for patent.
The life of a Canadian patent is typically twenty (20) years from the day that the application for the patent was filed. Canada grants this exclusionary property right to encourage the public to fully disclose technical advances and improvements so that, through this disclosure, further technical innovation can be undertaken. While developing new technological advances and obtaining Canadian patent rights can be costly, the expense is offset by the exclusionary rights granted by a patent that give the patent owner the opportunity to profit from the valuable and innovative work.
Before a client makes any investment in a patent application, we conduct a patentability search. Under the law, an invention is not new if it has been known to the public in any country. To evaluate patentability, we search the Canadian Intellectual Property Office (CIPO) and United States Patent and Trademark Office (USPTO) databases. Based on our search results, a client can decide whether to file a patent application. The patentability search is strongly recommended. First, if the invention is not new, the search prevents the unnecessary expense of filing an application certain to be rejected. Second, being familiar with other patents in the field allows us to draft a better application and present better arguments to the patent examiner.
Drafting a patent application involves writing an abstract, specification and claims, as well as selecting drawings and diagrams. The claims are the most important part of the patent: they define the scope of the inventor’s rights. A claim can be thought of as a fence surrounding a parcel of land. The greater the fence, the greater the rights it encompasses. At the same time, a fence that encroaches on the property of another will be taken down. In other words, a poorly drafted claim will not protect the invention. A court will invalidate a patent containing such a claim. Not surprisingly, drafting patent claims involves specialized knowledge and skills.
The specification is a description of
the invention. While not as crucial as the claims, the specification is
also very important. If the meaning of a claim is disputed, one looks to
the specification for resolution. Claims often stand or fall depending
on the language of the specification. It must also be noted that, while
claims can be amended during prosecution, nothing new can be added to
the specification. While the inventor provides the material for the
specification, it is the experience and skill of the patent lawyer that
determines the strength of the patent.