The Patent Act proffers 20-year property right, a virtual monopoly, to the applicant to make use or sell an "invention", defined as:
"... any new and useful art, process, machine, manufacture or composition of matter, or any new and useful improvement in any art, process, machine, manufacture or composition of matter."
Patents are the result of a balancing act between the government’s wish to promote new inventions and to share new inventions.
It has not always been "government's" desire to foster and promote innovation. For centuries, "to ensure that no one gained an advantage over anyone else, commercial law prohibited innovation in tools or techniques."1
The Canadian Patent Act gives inventors a 20 year monopoly from date of application ("twenty years from the filing date") - which is the same as in the USA.
The inventor's part of the bargain is to fully disclose his invention to the public by filing such disclosure with the patent office. Once the patent expires, it's free picking on the innovation.
A "secret" benefit of patent system – the "patent office" (which is public) is a veritable goldmine of innovative ideas from which other inventions spawn.
The Patent Office is farmed constantly by corporations for new ideas (by competitors).
Although the URL is not stable, the Canadian Patents Database is at http://patents1.ic.gc.ca/intro-e.html and is well worth a visit.
The US Patent Office is at http://www.uspto.gov/patft/index.html.
There are 30,000 patent applications every year in Canada alone.
From Commissioner of Patents v. Farbwerke Hoechst:
"There is no inherent common law right to a patent. An inventor gets his patent according to the terms of the Patent Act, no more and no less."
What is it?
- Original thing – first in the world;
- Can’t be just an abstract idea such as e=mc2 or a business plan;
- Unique and distinguishable from other patents;
- Must show some "inventive ingenuity"; and
- Must have some usefulness.
Be discreet about your patent until the application has been accepted by the Patent Office as if the "idea" has been shared or used publicly, it may be deemed to be in the public domain and disqualified from patent protection!
Patent rights do not exist until and unless an application is submitted to the Patent Office (contrary to ™ and ©).
Thus, strictly speaking, a patent is a legal document which certifies the property right to the monopoly.
The application has to include a full description of the invention (which then becomes publicly available). For example, this from a 1997 filing, US patent #6,004,596, Sealed Crustless Sandwich:
"A sealed crustless sandwich for providing a convenient sandwich without an outer crust which can be stored for long periods of time without a central filling from leaking outwardly. The sandwich includes a lower bread portion, an upper bread portion, an upper filling and a lower filling between the lower and upper bread portions, a center filling sealed between the upper and lower fillings, and a crimped edge along an outer perimeter of the bread portions for sealing the fillings therebetween. The upper and lower fillings are preferably comprised of peanut butter and the center filling is comprised of at least jelly. The center filling is prevented from radiating outwardly into and through the bread portions from the surrounding peanut butter."
A patent issued in Canada does not necessarily protect the inventor in other countries, if at all. Patents may have to be applied for everywhere!
We have, in Canada, a specialized legal service called "patent agents", who specialize in this area of the law. For any patent issue, consult a patent agent.
In the words of their professional association, the Intellectual Property Institute of Canada:
"In Canada, only a registered patent agent is permitted under the Patent Act to represent applicants before the Patent Office in obtaining patent protection.
"A patent agent is not a lawyer although many agents are also lawyers.
"The role of a patent agent begins when an invention is first conceived. The patent agent assesses the invention, with insights to the field of invention from the inventor, by searching prior patents and other publications to determine if the invention is patentable. If the invention appears to be patentable, the patent agent works with the inventor to prepare a document which is sufficient to teach anyone else who is skilled in the field of the invention to be able to reproduce and work the invention. The document, called a patent specification, contains a description and drawings showing how the invention is made and operates. The specification is also drafted to contain claims which define, in words, the exclusive rights sought by the inventor for the invention."
Most countries now allow patents for "higher life forms" which caused one interested observor (Scott C. Guth, M.D.) to reflect:
"We are about to enter a new epoch in which some or all human beings, their nature, and the events that derive from it will be planned and guided by human minds.
"The pertinent question is who is going to enhance what and what will be the consequences for them and others.
"However much we may rebel at the idea, the human species must now play "god". What kind of "god" will we be?"
The term "higher life form" has no commonly accepted meaning in law. It may include plants and animals.
In Canada, Harvard College v Commissioner of Patents, Harvard sought a patent on a process which allegedly made mice highly susceptible
to cancer and therefore useful to medical researchers. Its patent documents sought to cover the mouse too (termed the oncomouse).
The application was denied by the Supreme Court, which could not find statutory authority in the Patent Act to patent this type of "invention".
From the majority decision in Harvard College, paras 165-166, (Justice Bastarache):
"It is thus possible that Parliament did not regard crossbred plants and animals as patentable, not because they are higher life forms, but because they are better regarded as "discoveries".
"Unable to anticipate genetic alteration, Parliament would not have foreseen that higher life forms could be created in a manner reasonably understood as an invention. If this is the case, we should be wary of applying too broad or literal an interpretation of the phrase "composition of matter".
"Even if higher life forms were more easily cognizable as "composition(s) of matter", I still would find it difficult to conclude that the definition of "invention" was intended to be sufficiently broad to include higher life forms.
"Patenting higher life forms would involve a radical departure from the traditional patent regime.
"Moreover, the patentability of such life forms is a highly contentious matter that raises a number of extremely complex issues.
"If higher life forms are to be patentable, it must be under the clear and unequivocal direction of Parliament.
"For the reasons discussed above, I conclude that the current Act does not clearly indicate that higher life forms are patentable.
"Far from it.
"Rather, I believe that the best reading of the words of the Act supports the opposite conclusion — that higher life forms such as the oncomouse are not currently patentable in Canada."
Research and Further Reading