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Legal Guide


Under the Patent Act (Canada), an inventor or an assignee of the inventor may apply for a patent. It is the first person to file an application (not the first person to invent), in respect of an invention, who would be entitled, subject to certain qualifications, to the grant of a patent. 

“Invention” is defined as any new and useful art, process, machine, manufacture or composition of matter, or any new and useful improvement thereof. To be patentable, the invention must be novel and not have been obvious to a person skilled in the art or the science to which the invention relates. Public disclosure of the invention bars the grant of a patent, but is subject to a one-year grace period for the applicant. A patent application is laid open to the public 18 months after filing.

Foreign and convention applications

Any inventor who has applied for a patent in any other country may not obtain a patent in Canada for the same invention, unless his or her application in Canada is filed either: (i) before the issue of any foreign patent; or (ii) if a patent has been issued in any other country, within 12 months of the filing date of the first such foreign application. Canada is party to patent treaties and conventions with other countries, including the Patent Cooperation Treaty and the World Trade Organization Agreement, which may give priority to applicants from such countries with respect to the effective date of filing, and for some countries, may allow the 12-month period for the filing of an application in Canada (from the date of filing of the first application) to be extended to 30 months. Any applicant for a patent who does not reside or carry on business in Canada must appoint a representative in Canada.

Rights conferred by a patent

A patent confers on the patentee, for 20 years from the date of filing the application, the exclusive right of making, constructing, using and selling the invention. A patent is non-renewable. The remedies available for infringement of a patentee’s rights include an injunction, damages or an accounting for profits, destruction of infringing materials and costs. In addition, certain remedies may be available after the application has been laid open to the public.


No marking of any kind is required to indicate that an article is patented. In addition, if an unpatented article is falsely marked as patented, there are penalty provisions.

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