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Secrecy
It is better to avoid any non-confidential use, sale, disclosure or other publication of the invention until after a patent application has been filed. For filing in many countries, this is an absolute necessity. In situations where foreign filings are contemplated, therefore, it is the wise course not to publicize the invention until a patent application for the invention has been filed.
Generally, there is no right to sue an unauthorized manufacturer, vendor or user of the invention until the patent is granted. In Canada, an unauthorized person who acquires knowledge of the invention and manufactures articles embodying the invention in quantity before a patent is granted may continue to sell such articles out of inventory after the patent has been granted without infringing the patent (but such imitator is not legally permitted to manufacture any further articles after grant of the patent). Thus, there is good reason to keep the invention secret until after the patent grant. However, there are frequently offsetting business reasons for early introduction of the invention into the marketplace. No clear answer can be given that would be applicable to all situations. Legal considerations must be balanced against business considerations in each case to decide whether to publicize the invention before or after the patent has been granted.
In Canada and most other countries, a patent application is laid open to the inspection of the public 18 months after the filing date or after the Convention priority date, whichever occurs first. The Patent Act permits a patentee to recover reasonable compensation for any damages sustained by the patentee after the application has become open to the inspection of the public and before the grant of the patent, provided that a patent is eventually granted on the application. Accordingly, once the application has been laid open to public inspection at the Canadian Patent Office, the invention is, to a certain extent, no longer a secret (although it would still presumably not be widely known to the members of the public). The risk of competition from publicizing the invention after the application is laid open to public inspection is clearly reduced because of the right to recover reasonable compensation from an infringer.
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