Canadian patent application




Release time:2016-05-12

Overview of 1. Canadian Patent Applications

An invention for which a patent right has been granted shall comply with the standards set forth in the Patent Law. Patents are granted for certain inventions such as processes, machinery, articles of manufacture and compositions of matter. To be patented, an invention must meet the criteria of novelty, utility and inventive step. Novelty is a requirement that the invention has not been made public in some way (already available) before the filing of the patent application, subject to a grace period of one year from the date of disclosure of the invention to the public. Only the inventor (or a person who obtains rights from the inventor, such as the inventor's employer or agent) has the right to be granted a patent, provided that they are the first to file an application for the invention. The utility requires that the invention is created for a useful purpose and has operability. Creativity is that the invention is not significant to a person who has skills in inventions related to art.


Review Procedures for 2. Canadian Patent Applications

The Canadian Intellectual Property Office (CIPO) is responsible for the review of patent applications, which are requested within five years of filing. CIPO's objections to the application are called office actions and must be answered before the application can be filed. If the applicant's answer is not appropriate enough, the application will fail. Applicants must address the reasons for the failure of their applications on a case-by-case basis in order to have their applications reinstated. The application for reinstatement is valid only for one year from the date of abandonment of the application. The application will be made public 18 months after the filing date or priority date. A certain annual fee is required to maintain the validity of the patent. Canada is a signatory to the Paris Convention, the General Agreement on Tariffs and Trade, which established the World Trade Organization, so the priority date can also be determined by the date of filing of the application in other signatory countries. Canada is also a signatory to the North American Free Trade Agreement, the Budapest Treaty and the Patent Cooperation Treaty.


3. Canadian Patent Protection Term

The term of protection of a Canadian patent is 20 years from the date of filing of the application. As with many other jurisdictions, the scope of protection of a patent is determined on request. If the patent is sued, the judge can act in a purposeful manner to make the content of the claim function as law. The judge has a statement related to the entire patent, but does not include its history of prosecution, and this request can also be understood by a skilled person. The patent must also contain a description of the previous invention so that a skilled person can use the invention after the patent expires.


4. application route:

Introduction to PCT

The Patent Cooperation Treaty (PCT) was signed in 1970 and entered into force in 1978. China joined the PCT on January 1, 1994 and became a full member of the PCT. At the same time, the Chinese Patent Office has also become the PCT International Acceptance Office, the International Prosecutor's Office and the International Bureau of First Instance.

Eligibility of PCT Applicants

The treaty stipulates that nationals or residents of each contracting party to the treaty have the right to file an international application. Therefore, Chinese nationals (including entities and individuals, regardless of whether their place of residence or business is in China) and residents (regardless of whether their nationality belongs to China) All have the right to file an international application. And specify the patent to enter Canada.


PCT Application Procedure

PCT applications are divided into two phases: the PCT international phase and the PCT domestic phase.

1. International phase:(1) acceptance of patent applications and formal examination of patents;

(2) international search;

(3) International preliminary examination.

2. Domestic phase: The examination of the relevant PCT Member State determines whether a PCT patent application can be patented in that country.


The main procedure for the international phase of the PCT application:

1. acceptance of patent applications and patent review of patents

At the same time as the application, the PCT patent applicant must specify which member states the application will be valid in. These designated countries are called "designated countries". If the Chinese Patent Office, as the PCT receiving office, considers that the patent application documents and patent application procedures are complete, it shall determine the international application date. The international filing date means that from the filing date, the PCT international application has the effect in each "designated country" as equivalent to a regular domestic application, and the filing date also becomes the actual filing date in that designated country. The PCT receiving office will conduct a formal examination of the documents of the international PCT application, and after passing the examination, the international PCT application documents will be sent to the International Bureau of the World Intellectual Property Organization and the International Searching Authority respectively.

2. International Search

After the PCT patent application is filed, within the prescribed time, the Chinese Patent Office, as an international search authority, will search the PCT patent application and make an international search report. The search report will be sent to the PCT patent applicant and the International Bureau of the World Intellectual Property Organization as soon as possible within the specified time. After the expiration of 18 months from the international filing date (or priority date), the International Bureau will publish the PCT international patent application and the search report made by the International Searching Authority and send the application together with the search report to the patent office of the "designated country" required by the PCT patent application.

3. International Preliminary Examination

The Patent Cooperation Treaty provides that the international preliminary examination procedure is not mandatory. If a State party to the Treaty is bound by Chapter II of the PCT, the applicant may request an international preliminary examination of the application by an international preliminary examination body. The purpose of the international preliminary examination is to make a preliminary opinion as to whether the invention is novel, inventive and practical. The review is not binding on the individual designating States. However, the standard stipulated by PCT is the current international standard, and the examination opinion is made by a few international preliminary examination units on the basis of international search, so the report should be more reliable and reliable. When participating in the Patent Cooperation Treaty, some countries are not bound by Chapter II of the PCT. When requesting an international preliminary examination, the applicant may only select a number of countries from the designated countries bound by Chapter II of the PCT that will use the results of the international preliminary examination, and these countries are referred to as "selected countries". After examining the international application, the Chinese Patent Office, as the international preliminary examination authority, will submit the international preliminary examination report to the International Bureau of the World Intellectual Property Organization, which will transmit it to the applicant. At the same time, the International Bureau will also send the international preliminary examination report to the "selected country" of the application ".


PCT National Phase

When the international patent application is completed in the international phase, within the specified time, the PCT patent applicant will enter the domestic examination stage of each country according to the country specified at the time of application or the country selected at the time of request for preliminary examination. Whether a PCT patent application can be patented in the designated or selected country will be examined by each designated or selected country.


Materials required for the international phase of the PCT application:

1. Provide information (instruction letter) content: the name of the application, the name and address of the inventor (Chinese and English), the name or name and address of the applicant (Chinese and English), the nationality and telephone number of the applicant, etc. (2) Specify the country to which entry is required and indicate the type of patent to be applied for (invention, utility model). Designated States may not be increased after the submission of the application; if there are more than six designated States, the designation fee will not be increased. 3, power of attorney: an application to submit a power of attorney. The power of attorney must be an original signed by the applicant. If the power of attorney is not submitted at the time of application, the applicant may make it up. 4. If a Chinese patent has been applied for, provide the application documents for the Chinese patent application, including the description, claims, abstract and drawings. The original application documents may be amended at the time of filing a PCT application. 5. If you have not applied for a Chinese patent, you must submit a technical disclosure letter. Technical disclosure book: contains the name of the invention, the technical field of the invention, the existing technical situation in the technical field, the purpose of the present invention and the technical scheme to achieve the invention, the implementation effect of the technology, if necessary, can provide drawings to illustrate the invention. The applicant may also provide the above information orally.. 6, sign the contract of entrustment agent 7, sign the application ownership statement.


National Phase of PCT Applications

The applicant enters the designated/selected country within the stipulated time. At this time, it is necessary to translate the application documents into the official language of the country and go through the entry procedures of the corresponding country. The patent offices of various countries then examine them in accordance with their patent regulations and decide whether to grant a patent.


5. procedure for applying for and obtaining a patent in Canada

In general, the procedure is basically the same as that provided for in the 1970 Patent Cooperation Treaty. An invention that qualifies for a patent is that the invention must be new and useful, and that the invention must be a creative part of the development of a new product. An invention can be any new and usable technique, process, machine, product of manufacture, composite of materials, or improved product of any of the above. The most basic principle of patent law is that patents are granted only to the earliest inventors or their legal representatives. Companies that employ patented inventors need to specify ownership of the invention through a written agreement. In addition, exclusive ownership of a patent is granted on the basis of the "prior to filing" principle. This principle is different from "invention first". There are many other national legislations that adopt the judicial principle of "invention first. In view of the importance of the date of filing the application, the applicant should try every means to prepare the most basic application materials as soon as possible in accordance with the requirements of the Patent Law Implementation Rules. Canada does not have a hard and fast rule that a patented product must be marked as: patented product. However, it is illegal to label a "patented product" on a product that is not patented in Canada if it is fraudulent. For applications filed before October 1, 1989, the term is 17 years from the date of grant of the patent. If the application is filed after October 1, 1989, the period shall be 20 years, counting from the date of the application filed in Canada. During this period of protection, the patent owner shall be deemed to have infringed his patent if his exclusive rights are impaired when he uses his invention for production, construction, or his own use, or when he sells it to others for use. The patent owner may seek an injunction to prevent the infringement and has the right to claim compensation for the damage caused by the infringement. If a person has obtained a patent (or filed an application for a registered patent) under any patent treaty or convention in another country, and Canada is also a member of that patent treaty or convention, the patent shall have the same effect in Canada as long as the application is filed in Canada within 12 months after the filing of the application in that country.


6. must meet certain requirements and regulations to obtain a patent in Canada

First, the patent must be completely new. This provision has always been a condition of obtaining patent rights in Canada. Therefore, if an invention has been published or disclosed in Canada or anywhere else in the world before the date of filing a patent application, it will affect the obtaining of a patent. However, if the invention is disclosed by the patent applicant himself or by another person notified by the patent applicant, the patent application must be filed within 12 months.

Second, a patent can only be called a patent if an invention becomes usable. This means that it must be usable and industrially valuable. For example, it would be impossible for a patent to grant a purely scientific principle, an abstract theorem, or a form of medical treatment.

Third, an invention must be invented and not readily observed by a particular talent in its field. The requirements and conditions for computer software and drug inventions are quite special. Most computer software is protected by copyright, but if a piece of software is an integral part of another invention, the invention is patented at the same time that the software is patented. Patent applications for drugs are subject to a set of special approval procedures, which include a series of special reporting and price requirements.