CHAPTER 09 Intellectual Property
To be useful, an invention must be workable and of industrial value. Scientific principles or abstract theories, higher life forms, methods of medical treatment and abstract ideas are not patentable subject matter in Canada. In specific cases, computer-implemented inventions (i.e., software) can be patentable in Canada if they provide functional and useful results and are not merely the calculation of an algorithm. Lastly, an invention must not be obvious to someone skilled in the relevant art or subject matter, taking into consideration the state of knowledge and prior art existing in that area at the time of the invention, without the benefit of hindsight. Patents are normally granted to an original inventor or to the inventor’s legal representatives or assignees. Companies that employ inventors or are actively involved in research and development should therefore clarify the ownership of any potential or future inventions in written agreements with those individuals or employees likely to participate in the creative process. In addition, a patent is granted in Canada on the basis of the first to file, unlike the first-to-invent rule applied in some other jurisdictions. Because of the importance of the filing date of an application, an applicant should make every effort to file at least the minimum permitted information as early as possible. A Canadian patent application can also rely on the filing date of the first application (the “priority date”) in another country that is a member of PCT. In addition, patent applications filed internationally under PCT can enter the national phase in Canada and then proceed through the regular Canadian application process. Once a patent is granted and subject to the payment of annual maintenance fees, it remains valid for a non-renewable term of 20 years from the date the application is filed in Canada. In certain circumstances,
extensions to the patent term for up to two years may be available for patents that have claims for medicinal ingredients of a drug product that has been approved for sale in Canada. Further, the Canadian government has introduced proposed amendments to the Patent Act to incorporate a general patent term adjustment system; under CUSMA these amendments are required to come into force by January 1, 2025. The patentee enjoys exclusive rights to make, construct or use the invention that is the subject matter of the patent and to enjoin others from doing so. These exclusive rights may be assigned or licensed by the patentee. Any such assignment or licence should be in writing and recorded with CIPO. A patentee can bring a civil action for infringement of the patent rights. Available remedies may include an injunction, damages or an accounting for profits resulting from the infringement. In some cases, the court may also grant punitive damages. Once a patent is granted and subject to the payment of annual maintenance fees, it remains valid for a non-renewable term of 20 years from the date the application is filed in Canada.
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Davies | dwpv.com
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