Patents are a type of intellectual property. The law recognizes ownership of this property by providing the creator with protection against people who may want to copy their work. However, not all inventions can lead to a patent. Instead, the law imposes strict patentability definition guidelines.
Governing law on patents in Canada
The Patent Act is the federal law when it comes to patents. The administering agency is the Canadian Intellectual Property Office (CIPO), which takes charge of all intellectual property applications. These include trademarks and copyrights. Currently, there are no province-specific laws that address patents in Canada.
The use of intellectual property, however, has become an international concern. This is why aside from federal laws, Canada is a signatory to several treaties respecting patentability definition.
Here are just some of the patent-related treaties Canada is part of:
- Paris Convention for the Protection of Industrial Property
- Patent Cooperation Treaty
- Agreement on Trade-Related Aspects of Intellectual Property Rights
While there is no single universal patentability definition guideline, these treaties have a common theme in how patents are distinguished. Generally, Canada follows the definition set by its own laws. In case of cross-border concerns, the above treaties may be consulted to properly end disputes.
Here’s a simplified explanation of patent:
Our Lexpert-ranked cross-border intellectual property lawyers are also ready to lend their legal expertise.
What are the requirements for patentability in Canada?
Under the Patent Act, patentability must meet the following requirements:
- the invention is new, inventive, and a useful solution to a problem
- it must be a novel process, product, or device
New means that it is the first of its kind in the world. It should be functional or serve a purpose. It must be "inventive," which in law means it must show ingenuity or creativity, making it non-obvious to others in the same field.
Perhaps one of the most famous patented products today is Michael Jackson’s shoes.
Specifically, the King of Pop’s shoes he used for those leaning moves he executed during his shows. Known as the “anti-gravity shoes,” the product perfectly fits the definitiona of patentability. It’s new, it’s creative, and it solves the problem of how to create an illusion of anti-gravity.
Different items that may be patented
A patent doesn’t always have to be on a physical item. Patentability definition is broad enough to include processes. Since patents fall under intellectual property, the protection could be on a system that produces a product – as opposed to the product itself. Here are different items that could be patented:
- a product, like Michael Jackson’s anti-gravity shoes
- medicines like Ozempic
- a machine
- a process such as discovering a method for culturing cells
A patent could also be an improvement on how these things are done. For example, a patent can be placed on a new way to create insulin, which was in fact, done by the University of Toronto.
What is not patentable in Canada?
The list of non-patentable items is somewhat broad but heavily discussed under the governing law. Generally, though, the following items cannot be patented:
- concepts or discoveries
- scientific principles
- abstract theorems
- methods of surgery or medical treatment
- forms of energy
- printed material
- those that are only for intellectual or aesthetic importance
Aside from patents, intellectual property includes copyright and trademark.
How much does it cost to patent an idea in Canada?
Patent application varies depending on who is applying. There are two kinds of applicants: small entity and standard. A small entity is any entity with less than 100 employees. Universities also fall under this definition even if they have more than 100 employees.
There are exceptions though, like if the small entity is being controlled by another that does not meet the definition. Small entities that are also obligated to transfer their licenses or patents to a bigger entity are exempt from this definition. Simply put – the small entity must be the actual beneficiary of the patent, or they cannot benefit from the lower costs.
Pricewise, the application fee for 2025 is:
- $234.90 for a small entity
- $579.42 standard fee
In 2026, the application fee is set to increase to:
- $241.24 for a small entity
- $595.06 standard fee
Other fees related to patents
Other fees include:
- maintenance fee
- application examination fee
- advanced examination fee
- final fee
- reinstatement fee
- late fee
Taken together, the cost of applying for and maintaining a patent can be around a few thousand dollars.
For more targeted information, try reaching out to one of our Lexpert-ranked best intellectual property lawyers in Canada!
Process of getting a patent
There is no guaranteed time for the grant of a patent. Depending on the complexity of the product, the grant can take years. Experts are often required by CIPO to look through industry products and determine if an invention is truly “novel” according to patentability definition.
The length of time from application to grant prompted Canada to enforce laws that allow inventors to seek an “extension” of the patent coverage.
Here are the typical steps when applying for a patent in Canada:
Patent application
Formally, the process starts by filling in a patent application that you can find through CIPO. Patent examiners will validate the information you provided to ensure that you meet patentability definition. To repeat, the following requirements must be met:
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Inventions must be new. Often, it is compared with all other items in the world instead of just in Canada
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It must not be obvious. The global comparison helps prevent copying where inventors simply copy existing solution in other countries and introduce it in Canada
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It must be useful. “Usefulness” is often relative. For example, Michael Jackson’s anti-gravity shoes are useful – but only to him or other artists. The measure of usefulness is often in the economic value of the invention
Fees must also be paid at this point of the process and other costs after.
Patent search
This is the part that can take years to complete. A patent search is done on a global scale to make sure that nothing like it exists. Anything substantially different could also compromise a patent grant.
Almost all countries follow a “first to apply” rule. This means that the patent search isn’t limited to patents already granted. Instead, it also covers products with pending patents. The search is done through existing databases like the Canadian Patents Database and the United States Patent and Trademark Office.
Here’s how patent searches are typically done:
Receiving a patent certificate
The CIPO sends a patent certificate 15 days after submitting an application. However, this does not guarantee approval of the patent. Once you receive the certificate, certain protections are granted by law.
Examination request for patent
Within four years of filing an application, inventors must ask for an examination. This is because examination is not automatic under Canadian laws. Failure to file for examination means you abandoned the patent.
Should you get a patent lawyer?
An intellectual property lawyer is not required – but it does make the whole process easier. A patent lawyer often acts as an agent and helps the discovery process. They assist during the application process by preparing all the documents necessary for submission. This often includes:
- compiling information on the use and advantages of the invention
- providing clear comparisons on existing products to prove that the invention is novel
- gathering details on its proper use and application
- gathering details on the scope and limits, if any
- compiling information on tests made using the product and their implications
- preparing a list of other patented or patent pending materials that may be relevant to the current invention
Essentially, a patent lawyer helps position a product so that it meets the patentability definition set by law. They can also assist in the appeal process in case the patent is rejected. On the other end of the process, these lawyers can also assist in case of patent infringement.
How long does a Canadian patent last?
Patents aren’t forever and under the Canadian Patent Act, patent protection is up to 20 years from the time of filing. This is the length of time that inventors have the exclusive right to use or benefit from the use of their invention. Under Canada’s laws, the inventor must also pay yearly maintenance fees to keep that patent active.
So, what happens after 20 years? Unfortunately, renewal is not possible. However, a recent update in legislation lets patent holders apply for an additional term. The added term is typically compensation for the late approval of the patent application. With the extension, inventors can “make up” for the loss they had while patent is pending.
Are Canadian patents limited to Canada?
Yes. Patent rights acquired in Canada can only be enforced in Canada. This means that if someone infringes on your patent outside of Canada, then suing them is not possible. If you want to extend the protection, you can also apply for a patent in another country. In some cases, treaties may be enforced to extend patent protection.
Generally, Canada follows a “first to apply” approach to patent rights. This is why once you create an invention, it’s important to apply for protection immediately. The “patent pending” label often attached to new products does not offer any kind of protection. Instead, it simply deters possible competitors from applying for the same invention.
Benefits of getting a patent
So why exactly should inventors apply to patent their creations? Aside from the obvious financial benefits of a patented product, holding a patent can increase the value of businesses that have them.
Companies that hold patents have a marked advantage over those who don’t. Their intellectual property could add to the company’s perceived value. It also means that a company can offer their target market something no other company has. For example, Apple currently holds thousands of patents, allowing it to retain its position in the market.
The legal protection afforded by patents also gives inventors leverage in case someone else uses their invention. They can file a suit based on patent infringement against unauthorized use to make sure that all income benefits are paid to them.
Some companies, however, deliberately choose to NOT patent their products for various purposes. Coca-Cola, for example, is not patented. This is because a patent application requires disclosure of the product’s contents. Coca-Cola did not want to do that – which is why the recipe is just a well-guarded trade secret.
Confirm your eligibility for a patent
Unsure if your invention meets the patentability definition set by law? Intellectual property legislation can be quite confusing – which is why seeking legal help even before application is essential.
For more information on intellectual property law, try checking out our legal FAQ page on the topic.