2. What is Patent ? what can be patented in Canada ?

What is Patent ? what can be patented in Canada?

A patent is a government-granted right that gives exclusive ownership of an invention for a limited time. It allows the patentee to control who can use, make, sell, or import the invention. Obtaining a patent offers various financial advantages, such as earning royalties through licensing, building a business without competition, raising capital, or selling the patent.

Table of Contents

To understand what can be patented in Canada, We will start with how patent law defines a patent.

Definition: what is a patent?

“A Patent is a statutory right for an invention granted for a limited period of time to the patentee by the Government, in exchange of full disclosure of his invention for excluding others, from making, using, selling, importing the patented product or process for producing that product for those purposes without his consent.”

in other words;

“A patent can be defined as a grant of exclusive rights to an inventor over his invention for a limited period of time (generally 20 years from the date of filing of patent application). The exclusive rights are the right to exclude others from making, using, selling, importing, or offering for sale his patented invention without his permission.”

This implies, when you get a patent for your innovative idea, the government gives you a monopolistic right for your invention to stop others from making, using, selling, importing, or offering for sale your patented invention without your permission.

What this means in financial terms is you would get significant monetary benefits for your patented invention by: 

  • licensing your patented invention to other businesses and earn royalties on regular basis as per the agreement
  • you can build a business around your patented invention and stop others from copying it, so there would be no one competing with you with similar product or service, and hence can earn significant profits.
  • having a patent for your invention may also help in raising capital for business

you can transfer all rights of the patented invention to other businesses. that is, you can make significant money by selling your patented invention. 

What can be patented in Canada ?

Patentable subject matter

Section 2 of the Patent Act defines an invention as: any new and useful product, composition, machine, process or any new and useful improvement in any product, composition, machine or process.

  • “process” is : a process, act, or method, and primarily includes industrial or technical processes.
  • The term “machine” used in the statute needs no explanation.
  • The term “composition” relates to chemical compositions and may include mixtures of ingredients as well as new chemical compounds. 

Patent eligible subject matter

As per subject-matter defined in section 2 of the Patent Act ; Statutory requirement is to check if the subject matter is eligible to be patented under Canada patent law, a patentable subject matter fall in the category of a Product, Composition, Machine, process of or an improvement of any of these.

inventive : means the invention should be Non-obvious for a person skilled in the art.

Source : Chapter 17: Statutory Subject-Matter in the Manual of Patent Office Practice (MOPOP).

The invention must fall into the category of Product, Composition, Machine, process. and it should not be falling within an exception recognized by the courts; namely, laws of nature, physical phenomena, and abstract ideas.

An invention is eligible for patent protection if it is New, Useful and inventive.

Patentability requirements of an invention:

  • The invention should be patentable subject matter, which is any “new and useful” machine, manufacture, process, or composition of matter
  • The invention must be new, or “novel.”
  • The invention should be “non-obviousness.”
  • The  invention must be useful, or offer “utility.” 

Now let’s look at each patentability criteria one by one so that we can see if our invention satisfies them and whether we should proceed with filing a patent application.

Novelty :

An invention is said to be novel if it is not known to the public or does not constitute the state of the art. The invention should not be in publication or being used or known to the public or patented in Canada or other countries prior to the filing date.

Non-obviousness :

This is the most tricky and difficult to overcome the requirement for getting a patent in Canada .

A patent may not be obtained, if the differences between the subject matter sought to be patented and the prior art is such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art.

The non-obviousness requirement states in order to get a patent the invention should not be obvious to a person who is ordinarily skilled in the art.

if we review the invention in light of existing knowledge or state of the art, does the invention becomes an obvious next step? If the answer is yes… then the invention is said to be obvious to a person skilled in the art and a patent would not be granted such invention.

Some of the common things considered as obvious are: 

  • Combine elements from prior arts become mere combination of prior art elements
  • Interchanging or substituting element to obtain similar results
  • Use of known techniques or methods to enhance invention  etc…

In other words, considering the state of the art (things already known to the public) and assuming the person skilled in the art does not have any knowledge about our invention, if that person skilled in the art was asked to solve the problem (that our invention solves), then our invention should not come as a natural suggestion by that person skilled in the art. Which ultimately means invention should not be obvious. This is in essence known as a non-obviousness test.

Few approaches to achieving the Inventive step

A few approaches to achieve the Inventive step are:

  • Inventions is solving a long-standing technical problem which is tried to be solved by prior arts but could not.
  • If the invention is showing unexpected technical effect of a new combination of known elements
  • The degree of difficulty for a person to combine known prior arts to arrive at a solution, etc..
  • The “problem/solution” approach is usually used for evaluating inventive step, wherein the solution presented by the patent application is checked if it is obvious to a person skilled in the art.

And one of the ways that could be helpful in qualifying the non-obviousness test of patentability is mentioning and proving to the examiner that our invention is solving a long-standing problem in the industry. Pointing out that the problem existed for long time and there was a need to solve the problem, also mentioning existing prior arts and patent references who tried before but could not solve up to a certain extent (stating problems with the prior arts in the background of the invention while drafting patent) and since the problem has not solved till now it ultimately means the solution to the problem that is our invention was Not obvious.

Now, this is not your job as an inventor to do all this, in fact, this is the responsibility of a patent agent or patent attorney working on your invention.  an experienced Patent practitioner would be asking you for the required details and technicality of your invention and using such information while drafting a patent application for your invention which gives a significant chance for your patent application to stand through examination stage till the grant of patent.

Utility or useful :

The utility or usefulness criteria of patentability states an invention is “useful” if it provides some identifiable benefit and is capable of use. The invention must have a “utility,” or in other words, be useful.

Inventions not patentable in Canada

What Inventions are not patentable subject matter in Canada ? As we have seen in the definition of patentable subject matter, any person who “invents or discovers any new and useful process, machine, manufacture, or composition, or any new and useful improvement thereof, may obtain a patent,”’

Some inventions may not be patentable subject matter such as

  • Scientific principles and abstract theorems
  • Methods of medical treatment or surgery
  • Higher life forms
  • Forms of energy
  • Features of solely intellectual or aesthetic significance
  • Printed matter
  • Fine arts
  • Schemes, plans, rules, and mental processes
  • Games

What extent of information is required to file a patent in Canada?

when you are thinking about that innovative idea and its patentability, the first question you need to ask yourself about your idea is how much details you know about that idea and are these details are enough to reduce it into practice?

“innovative ideas (inventions) are patentable only if they are enabling ” provided that it satisfies all patentability criteria. Your idea would be said to be ‘enabling’ if the information you have is detailed enough such that a person skilled in the art would be able to practice the invention without requiring external help or additional research.

In other words, the information you know about your idea is detailed enough such that a person moderately skilled in the art could practice the invention. You don’t need to develop a working model or a prototype of your invention (idea) but you need to know how to implement or practice your invention. such information called “implementable details of invention” or an enabling disclosure of the invention.

“Everything has its beginning in an idea” 

When all you have is one line idea about something that might work or would work then you should know there is work to be done and efforts to be taken before it could get patent granted. That doesn’t mean you need to build your invention or a working prototype, all it means is you need enough details about your idea that would help someone to practice it, it should be enabling !!!

Everything begins with an idea, including inventions that are granted patents now, started as an idea at a certain point. but a 1 line idea may not be yet patentable, it needs further work so that it becomes invention disclosure (implementable information of the invention) such that a person skilled in the art could reduce it to practice.

You may read our guideline on How to take your innovative idea from idea stage to invention disclosure to granted patent in Canada which would help you proceed in step by step manner from idea inception stage to granted patent.

Prasad Karhad
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