147 IP and Commercialization | Intellectual Property Basics | Patents and Trademarks

Patents

A patent is a time-limited IP right granted by a government which gives exclusive rights to make, use, and sell an invention to its owner. Fees for filing and maintaining patents, as well as criteria for having a patent granted, can vary between countries. It is important to recognize that patents are limited to the country in which the patent is granted in – global patents do not exist. One of the limitations of filing patents is that they are expensive to file, so if you wish to patent your invention in many countries, you have to file an application in each country you plan to sell or manufacture your invention and it gets expensive very quickly.

Within Canada, patents are valid for up to 20 years from the date of filing. In order for an invention to be patentable it must be useful, novel, and non-obvious. Almost all inventions have some practical use, therefore this is a low bar. However, novelty means that the IP or invention incorporating the IP is the ‘first in the world’ to demonstrate your invention. This is a very high bar to pass. Novelty does not mean that the invention must be an entirely new device, process, or product as many patents are granted for novel improvements to an existing invention. Non-obviousness means that the IP or invention incorporating the IP, would not be a predictable, logical, development by another person with ‘average skills in the art’ specific to the field of your IP. This too is a very high bar because researchers are improving methods and products continuously, so an improvement in one field can easily be transferred to another field where it can yield predictable improvements. This logical transfer makes the improvement obvious and therefore unpatentable.

The criteria for patentability are important to keep in mind, particularly when IP arises from academic works. For example, previous scientific publications can render a future invention unpatentable as it would no longer be considered novel because the publication makes the invention known to the general public. Inventors and creators often destroy novelty, and therefore the opportunity to obtain a patent because they publish their invention (in whole or in part) too early.

Take a moment to quickly do a few basic searches for patents, use keywords related to projects you are working on or use a random choice of keywords. Spend no more than 5 minutes on this activity. CIPO Canadian Patents Database – Basic Search

Trademark

A trademark is a recognizable symbol, design, word, phrase, or feature that distinguishes the goods and services of a business or brand from another. By registering a trademark, companies protect their unique brand and product identities.

While patents grant exclusive rights for a set period and then expire becoming available for use by any entity, trademarks grant exclusive use for a set period of time with the option for ongoing renewals. Within Canada, trademarks preserve the exclusive right of use for a 10-year period with the option to renew in additional 10-year increments.

A trademark registered and approved in Canada by the Canadian Intellectual Property Office (CIPO) may consist of one, or any combination of, the following: designs, 3D shapes, colours, words, tastes, scents, sounds, textures, moving images, holograms, and/or packaging. Certification marks may also be registered as a trademark. The purpose of a certification mark is to identify that a certain good or service meets a defined standard.

Activity

Try searching for a trademark related to your own last name, or other keywords or business names of interest to you. Spend no more than 5 minutes on this activity.

CIPO Canadian Trademark Database – Trademark Search

Browse the following images for some examples of Trademarks

• Hologram on credit card
• Shape of the Toblerone chocolate bar
• Tiffany Co. blue colour
• Nike “Just Do It” Slogan

Copyright

“Simply put, copyright means the right to copy, and copyright law prohibits others from copying specific types of works without permission. Copyright is the exclusive legal right to produce, reproduce, publish or perform an original literary, artistic, dramatic or musical work.”⁵⁵

While other IP rights are granted by a governing body, copyright exists as soon as original work is created and in most cases that work remains under copyright until 50 years after the creator’s death. It should be noted that this timeframe can vary; copyright in the United States lasts 70 years after the creators’ death. In Canada it is possible to receive a certificate of registration which can be used as further proof of copyright, should a copyright claim go to court.

Licensing and assigning copyright to another individual or organization is a way to generate income from the associated works. Creative Commons is an additional option to consider as a copyright holder to make the creative works easily available for public use and distribution. Through a variety of Creative Commons license types, icons, and simple language is used to clearly articulate if and how people and organizations may use, share, or build upon your work.

Industrial Design

Industrial design protections focus on the visual appearance of a product, or how it looks in 2D and/or 3D space. This includes its shape, configuration, pattern, and ornaments or any combinations of those features. Once again, the CIPO is the governing body for industrial design registration within Canada. Any new design can be registered for exclusive right of use for up to 15 years.

Trade Secrets

Trade secrets are confidential information with value dependent upon its secrecy. While they are recognized as an IP asset, Canadian IP law does not offer any formal registration process or IP rights enforced by legal statute for its protection. A trade secret only protects information if the information is kept secret. Trade secrets are protected by using legal contracts and confidentiality agreements whenever a trade secret is shared or exchanged. It is reasonable and prudent for the owner of a trade secret to demand that other parties wishing to access the trade secret sign a confidentiality or non-disclosure agreement to keep the secret safe. If the trade secret is disclosed contrary to the agreement, then the owner can take the disclosing party to court for breach of contract and be awarded damages to be paid by the disclosing party. Unfortunately, this award does not return the former secret to its confidential status – as it is now in the public domain.

Plant Breeders’ Rights

Administered by the Canadian Food Inspection Agency (CFIA), Plant Breeders’ Rights (PBR) protect newly developed plant varieties and preserve exclusive rights related to the propagation of the plant, similar to a patent protecting an invention. Two varying lengths of PBR protection exist; one for protecting trees and vines (including related rootstock), which lasts 25 years, and one for all other plant varieties, with protections lasting 20 years. To be granted PBR protection it must be demonstrated that a variety is new, contains at least one distinct characteristic from known varieties, uniform, and stable over successive generations.

Outside of Canada these rights may be referred to as Plant Variety Rights. As with patents it is necessary to apply for these protections to be granted by each national/regional office.

Integrated Circuit Topographies

With the rapid development of electronics and microchips in almost any complex product today, governments around the world have passed laws to protect the three-dimensional design of electronic circuits embodied in the integrated circuits of these products. Consequently, any original integrated circuit topography (in whole or in part) can be registered with CIPO – if granted these IP rights last for 10 years from the date the application was submitted.