By: Fasken Martineau
The protection of intellectual property is primarily a federal responsibility and is the subject of four principal federal statutes: Patent Act, Trade-marks Act, Copyright Act, and Industrial Design Act.
The Canadian Intellectual Property Office of Industry Canada administers these statutes. However, matters like the unauthorized use of a trademark (known as "the law of passing off") or the misuse of a trade secret fall within provincial jurisdiction. In certain circumstances, the federal and provincial jurisdictions will overlap, as is the case with passing off, which is also covered in the Trade-marks Act.
Patents
The Patent Act establishes what is known as a "first to file" system. In Canada, the first applicant to file a patent application for an invention will be entitled to obtain patent protection for that invention.
A Canadian patent grants its owner the exclusive rights to make, use, and sell an invention in Canada, as defined in the claims of the patent, for a period of 20 years from the date of the application. A patent will only be granted for inventions that are new, inventive, and useful and may be obtained for devices, materials, processes, and uses. Patent protection is not available for scientific principles, abstract theorems, or ideas; nor is it available for higher life forms like genetically modified animals.
To be considered new or novel, the invention cannot have been disclosed in such a manner as to have become publicly available anywhere in the world. An exception to this is inventor- derived disclosures; a one-year grace period is provided for any such disclosures.
For the invention to be considered inventive, the differences between the state of the art and the inventive concept of the claims must involve steps that require ingenuity.
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