June 13, 2010
In a knowledge-based economy, your ideas are some of your most precious business assets. Whether you're a creative entrepreneur or an inventor, it's important to understand issues such as trademarks, patents, copyright and industrial design. Be sure to visit the Canadian Intellectual Property Office for detailed information.
Meanwhile, here's a quick overview:
Essentially through a patent, the government gives the inventor 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.
Patents generally cover new inventions, and are not to be confused with trademarks, which are explained here further along. Getting a patent is a complex and formal process in Canada. Here are the key steps you'll need to take:
Find a patent agent
First of all, preparing and prosecuting a patent application 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.
Do a preliminary search
The first step your agent will undertake is doing a search of existing patents. If what you're proposing has already been patented, there's no point going any further.
Help your agent prepare a patent application
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
You have to prepare a formal application and ask the Commissioner of Patents to grant you a patent. Your patent agent can help you with this.
Keep in mind that your application will not automatically be examined because you've filed it. You have to formally request examination and pay the fee. Filing, however, gives you some protection for your invention without having to fully commit yourself to the patent procedures. But remember that the request has to be made within 5 years of the filing date. If you don't request it within that period of time, anyone can freely 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 in the proper format; 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 final decision is objected to, you appeal
At this point, you can still appeal to the Commissioner of Patents by requesting that the Commissioner review the examiner's objection.
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. Be sure that you distinguish this 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 the registered mark. Ideally, you should conduct a search of existing trade names before filing a trade mark application. To ensure a thorough search, you can hire a trade mark agent to do the job. A list of agents is available at the Canadian Intellectual Property Office. You could also use the Trade-mark database tutorial for guidance and advice on how to search their database.
Registered trademark vs 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 example, registration gives you the exclusive right to use the mark across Canada for 15 years. It's also a valuable asset for business expansion through licensing franchises.
How do you register your trademark?
File an application online with the Trademarks Office.
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 the Canadian Intellectual Property Office. You don't have to do so, but it can be a useful proof of ownership.
Copyright literally means the right to make a copy. The holder of a copyright to a work is the only person who has the right to make a copy of it in any form, or to permit someone else to do so.
The owner of a copyright has the sole right to control any publication, production, reproduction and performance of a work or its translation. Royalty payments may be arranged through performing rights societies, collectives, publishing houses or by the owners directly.
The kinds of works covered by copyright rules include books, maps, lyrics, musical scores, sculptures, paintings, photographs, films, tapes, computer programs and databases; however, slogans, names and mere titles are not. Performers' performances, sound recordings and communications signals are also covered.
Copyright generally lasts for the life of the author and for 50 years following the end of that calendar year.
An industrial design must be an original shape, pattern or ornamentation applied to a manufactured article. The shape of a table or the decoration on the handle of a spoon are examples of industrial design.
The proprietor of a design may also apply for and obtain registration. The owner of the industrial design has exclusive rights to it for 10 years as long as the maintenance fee is paid. To be eligible for registration, a design must be original. For more information, visit the Canada Business.
Find 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.