The Critical Factors Used In Granting Patents in Canada: Part 2
In our previous blog, we outlined four criteria important in the granting or rejection of a patent. If you missed that blog, you can click here to read Part 1. In order to obtain an issued patent, your invention must contain patentable subject matter, be novel, be useful and be non-obvious. Let’s explore the three remaining criteria from the list, starting with novelty.
In Canada, the first party to file a patent application is entitled to receive patent rights. This is one reason that many businesses and entrepreneurs rush to file patents. This can also be a tactic to block potential competitors from obtaining patent rights. The invention must be ‘new’ at the time the patent application is filed. An invention is considered to be new if all of the elements of the invention are not disclosed in a prior art document. It may also be considered to be 'new' if it is a combination of previous patented inventions, as long as it produces new results. Many patent applications are filed for improvement of an already existing process or apparatus. Improvements to existing technologies can be patentable. An invention will not be considered new if it exists in its entirety somewhere in the world.
Patents are only granted to inventions that are useful. If the invention does not work, then a patent will not be granted. Another valuable aspect of an invention is if it is built to make a particular process cost efficient, is superior or benefits the public may also be seen as a useful patent. Generally speaking, utility is a very easy bar to meet, however it is important that the invention as claimed work and that proper disclosure of the invention is provided.
In order to obtain a patent for an invention, the invention must be deemed to be non-obvious. Non-obviousness is the most challenging criteria to meet. There is a five-step process that is used when analyzing a patent application to determine whether or not it is obvious. These five steps include:
- Identify the "person skilled in the art";
- Identify the relevant common general knowledge of that person;
- Identify or construe the inventive concept of the claim in question;
- Identify the differences that exist between the prior disclosure forming part of the "state of the art" and the inventive concept of the claimed invention; and
- Viewed without any knowledge of the alleged invention as claimed, determine whether the differences constitute steps which would have been evident to the person skilled in the art or whether they require inventiveness.
Patents are time-sensitive and the application process can be time-consuming. Small mistakes can result in a loss of patent rights, an inability to obtain an issued patent or invalidity of a patent. Before filing a patent application, it may be beneficial to speak to a registered patent agent who understands the process and can provide assistance.
If you have questions about your patent or are thinking about applying, contact us for a free consultation today.