Patents, trademarks and copyright: How to protect your business ideas

What is a patent?

Essentially, through a patent, the government gives you the right to exclude others from making, using or selling your invention from the day the patent is granted to a maximum of 20 years after the day you filed the patent. Patents are generally granted on criteria such as their novelty, utility and ingenuity, or in simpler terms if they are new, useful and not obvious to someone skilled in the relevant field.

Patents generally cover new inventions or improvements to existing inventions, and are not to be confused with trademarks, which are explained below.

How to get a patent in Canada

Getting a patent is a complex and formal process in Canada. Here are the steps.

Find a patent agent—Preparing and filing a patent application generally requires a patent agent who understands patent law. A trained agent can save you from headaches such as a poorly drafted patent that doesn't adequately protect your invention.

The first step your agent will undertake is a search of existing patents. If what you're proposing has already been patented, there's no point going any further.

You can assist your agent to obtain the best possible patent by providing accurate information. This generally includes details on your invention, practical uses and what distinguishes it from previous inventions.

File your application—With your assistance, your patent agent will prepare a formal application and ask the Commissioner of Patents to grant you a patent.

Request examination—Keep in mind your application will not automatically be examined because you've filed it. You have to formally request an examination and pay a fee. Filing, however, does give you some protection for your invention without having to fully commit yourself to the patent procedures.

But remember that the examination request has to be made within 5 years of the filing date. If you don't request it within that period, anyone can make, use or sell the products or processes described in your application.

Examiner searches for prior patents and approves or objects—The examiner's job is to make sure your application is properly prepared; to do a search among prior patents; and, report whether or not he or she approves or objects to your patent. Keep in mind that the examiner might object to your whole application or request changes to your application.

Respond to examiner's objections and requirements—If the examiner objects to some of your claims, your patent agent will have an opportunity to amend your application.

Examiner approves or calls for further amendments—The examiner then studies it and prepares a second response. This could be a "notice of allowance" letting you know that you will be granted a patent, or a call for further amendments.

If the final decision is objected to, you can appeal—At this point, you can still appeal to the Commissioner of Patents by requesting that the Commissioner review the examiner's objection.

What is a trademark?

A trademark is defined as a word, symbol or design used to distinguish the wares or services of one person or organization from those of others in the marketplace. It can be a word, a design, a letter, a numeral, a colour, a figurative element, a three-dimensional shape, a hologram, a moving image, a mode of packaging goods, a sound, a scent, a taste, a texture, a position, or a combination of these. Trademarks come to represent not only the actual goods or services, but also the reputation, of the producer. As such, trademarks constitute valuable intellectual property.

It’s different from a trade name, which is essentially the name under which you conduct your business.

In certain circumstances, a trademark registration may be declared invalid because of the prior use of a trade name which is similar to your registered trademark. Ideally, you should conduct a search of existing trade names before filing a trademark application. The best resources is the Canadian Trademarks Database.

What is the difference between registered trademark versus unregistered?

A registered trademark is one that is entered on the Trademarks Register. You are not actually required to register your trademark since using it for a certain length of time gives you common law ownership. Still, it is highly recommended.

For all trademark applications filed as of June 17, 2019, the registration will be valid for 10 years, renewable every 10 years.

You can file an application with the Canadian Intellectual Property Office.

What is copyright?

Copyright gives an owner the sole right to copy his or her work or permit someone else to do so. You can register your copyright with CIPO.

A copyrighted work is an original literary, artistic, musical and/or dramatic work. Copyright usually lasts for the life of the author, plus another 50 years. By taking advantage of your copyright, you will have exclusive right to stop someone else from reproducing your work.

Registration with CIPO comes with advantages, such as:

• Giving you evidence that your copyrighted work is protected
• Proving ownership if a dispute arises in court
• Licensing or selling the copyrighted work to others
• Limiting the ways others use the copyrighted work to protect the value of your investment

An original piece of work is generally protected automatically by copyright the moment it is created. It is automatic for anyone living in Canada and extends to most other countries. Generally, the author of the work is the first owner of the copyright. However, if the author creates copyrighted work as part of a job, the employer is the owner, unless the employment contract states otherwise.

What is industrial design?

An industrial design can be a shape, configuration, pattern, ornament or any combination of these features. The protection lasts for 10 years maximum in Canada.

Nearly any product that catches your eye when you walk into a store has an element of industrial design to it. It is your product’s visual features that appeal to the eye. It provides your product with a competitive edge in the marketplace and sets you apart from your competition. Consider the following key points with respect to industrial design registration.

Is the design original? In order to be granted protection, your design must not closely resemble another existing design in the world. Industrial design registrations are intended to protect new designs, and not those that have already been in the marketplace. Consequently, once your design has been made public, you have one year to file for protection with CIPO.

Is the design aesthetic and not functional? An industrial design protection only covers the appearance of the article. The protection does not extend to how the product works, how it is made, or what materials it is made from.

It’s important to note that you must obtain protection in other countries separately. If you are looking to do business in other countries and want exclusive design rights in those countries, you may want to keep your design a secret until all design applications are submitted worldwide.

Organizations that promote innovation

Organizations like the Inno-centre help companies that wish to capitalize on technological innovation. The Centre provides coaching and business advice over a 2-year period to companies with an innovative product that has excellent growth potential. It also has its own business network for later stages of development and commercialization.

The National Research Council of Canada offers an Industrial Research Assistance Program (IRAP) whose goal is to help Canadian small and medium-sized businesses enhance their ability to innovate and thereby create profitable new products, processes or services.

For additional information about intellectual property, contact CIPO’s Client Service Centre or one of its regional business development officers.