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Patentable Subject-Matter & Novelty Requirement

Most novel, useful and unobvious products, processes and apparatus qualify for patent protection. However, not all inventions are patentable. In Canada, for example, methods of medical treatment are not patentable. Also, the scope of protection for new life forms produced through chemical or genetic engineering processes is open to question. In some countries, computer software comprising merely an algorithm is not patentable, although computer-controlled apparatus and processes are often patentable.

In most countries, to be validly patented, an invention must not have been previously sold, used or publicly disclosed by the inventor or anyone else before a patent application for the invention is filed by the inventor or the inventor's assignee. In some countries, even a single prior sale, use, or public disclosure by the inventor or anyone else, before the filing of the patent application, can prevent the grant of a valid patent. A US or Canadian patent can be obtained if the inventor (or someone who has derived knowledge of the invention from the inventor) has previously sold, used or disclosed the invention less than one year before the filing of the application.

In Canada, an inventor can establish a right of priority as against a conflicting applicant only by filing a patent application for the invention before the other person does so. This is because Canada, like most countries, awards a patent for an invention to the person who first filed a patent application for that invention (or an essentially similar invention). It is important, therefore, that any unnecessary delays be avoided in the preparation and filing of a patent application.

The United States, unlike Canada, generally awards the patent to the "first to invent". Because United States law requires diligence in reducing an invention to practice once it has been conceived, and because the filing of a patent application qualifies under United States law as reduction to practice, a Canadian inventor, to preserve U.S. rights, should file a patent application for the invention as quickly as possible. Similarly, filing the patent application is the only effective way in which priority rights in foreign countries can be established. Once the first patent application has been filed, counterpart patent applications in most other major countries (or an international application) may be filed within the next twelve months, and if so, they will be awarded a filing date that is effectively the same as the first filed application, by reason of international agreement (the Paris Convention).


	Nothing here written constitutes legal advice. The accuracy of what is written is not guaranteed. Please consult us about any specific matter on which you require legal advice. © Barrigar Intellectual Property Law 2001