10. Intellectual Property
A patent is the exclusive right to make, use or sell an invention for a specified period of time (in Canada a patent is valid for up to 20 years after the data of filing the patent), granted by the federal government to the inventor. A patent holder owns a patent. Patents may be legally sold to others. Therefore, an inventor may sell a patent to others, which ends his or her property interest in the invention.
Many inventors and designers work for employers in creative and inventive capacities. Depending upon the employer / employee relationship the employer or the employee may be classified as the inventor. However, generally speaking, if an employee invents something as part of his or her employment, then the employer is the patent holder. Typically, if an employee invents something outside of work on his or her own time, and the invention is not related to his or her employment, then the employee is the patent holder. If you have questions about who own the IP, check with a professional to ensure clarity.
To apply for a patent, an inventor must meet three requirements: the invention must be (1) novel, (2) non-obvious, (3) and must be useful.
- To be novel, the invention must not have been previously invented and must not come from a trivial improvement to an existing invention. In other words, it must not have been previously known or used.
- To be non-obvious, the invention must not be obvious to a reasonable person (a hypothetical person of ordinary intelligence and prudence) in an appropriate field with ordinary skill. In other words, patents reward creativity that results in something new and is not considered common knowledge by someone in the industry.
- To be useful, the invention must create some type of value for society in general. This is somewhat obvious and an easy requirement to meet, but it should be worth noting before moving forward with any patent application.
Not all things can be patented. An idea alone (without a definite description) cannot be patented. Similarly, the laws of nature (such as gravity) and things that occur naturally (such as DNA) cannot be patented. This is because some items found in nature are not the result of human invention or creativity. If not the product of a human mind, then a patent cannot apply. This distinction can be narrow in some industries. For example, DNA cannot be patented but the scientific process of synthetically reproducing DNA can be patented (since it is a human invention). Likewise, oil cannot be patented but the process for extracting it from the ground can be.
It should also be noted that in many jurisdictions, if a granted patent is not used by the patent holder, then they can be forced by a court to grant a license to someone or some business who does plan to use the patent.
Outside of Canada, a patent granted by Canada does not automatically protect the inventor’s interest in that property. Instead, IP is protected by a series of international conventions. Because international law is only binding on nations who agree to be bound by it, IP is not protected internationally in nations that have not signed the conventions.
Often people ask how to actually patent an idea. It is a complicated process. Each jurisdiction will have its own rules, requirements, fees, processes, supporting documents, etc. The differences are many. Here are a few simple examples:
- The duration of patent protection may vary from jurisdiction to jurisdiction.
- Some jurisdictions provide provisional patent protection which allows an inventor to state their idea and then have a period of time to fully develop the idea (USA is 12 months as an example)
- Some jurisdictions don’t recognize other patent issuing jurisdictions; so, if you patent in a country in South America for example, it may not be accepted in a European country (just as an example)
For many Canadian companies and individuals, if they choose to attempt securing patent protection, then they will secure Canadian and USA patent protection. Many will also seek international protection from jurisdictions like the EU and the United Kingdom.
International treaties such as the Paris Convention for the Protection of Industrial Property and The Patent Cooperation Treaty contain provisions to protect patent rights in member countries. The World Intellectual Property Organization (WIPO) provides service, resources, and education concerning is an global intellectual property matters:
Securing patent protection can be a complicated and costly process. While it does provide protection of an idea, that protection must be weighed against the cost to secure that protection. In effect, is the future value of the patent protection worth the current cost to acquire the protection?
If someone uses a patented invention without permission from the patent holder, then that person has violated the patent holder’s rights. This violation of IP rights is called patent infringement. Patent infringement is the act of making, using, selling, or offering to sell a patented invention without the permission of the patent holder. Patent infringement can be either direct or indirect.
There are two forms of patent infringements. Direct infringement occurs when someone copies and uses an invention or uses an invention with a slight variation or addition. Indirect infringement occurs when someone “designs around” a patent by creating a product that is substantially the same and performs a similar function.
If patent holders successfully sue for patent infringement, they may be entitled to damages including injunction forcing their competitors to stop using the invention. The most common defense to patent infringement claims is to challenge the validity of the patent.