So you or someone else at your company has developed a new device or system, a new chemical process, or a new way to achieve a certain result or to perform a function. An invention, some might say.
If you wish to have some form of protection for an invention, a patent might warrant consideration. A patent provides a period of exclusivity during which only a patent owner or those authorized by the patent owner may make, use, or sell an invention.
Determining whether a patent might be appropriate for an invention can be somewhat difficult. Canadian patents have been issued to inventions in a wide range of technical fields, from one of the "greatest things in sliced bread" (see Canadian Patent No. 198,275, entitled "Machine For Making Pre-Sliced Bread Loaves", issued March 16, 1920), to some of the greatest things since (see Canadian Patent No. 367,104 to J. Armand Bombardier, entitled "Snowmobile", issued June 29, 1937, as one example of a famous invention for which a patent was granted). Given the broad collection of inventions for which patents are granted, how can one initially assess an invention for potential patentability?
The Canadian Patent Act defines a patentable invention as a new and useful "art, process, machine, manufacture, or composition of matter" or a new and useful improvement thereof. In more familiar terms, an "art" would include a method or way of doing something. A "process" is generally considered to be a chemical process. A relatively broad interpretation, including virtually any physical device or system, is given to "machine". A "manufacture" might be most clearly explained as a product that is made and sold. Finally, a "composition matter" is a chemical compound.
Certain exclusions to patentability have also been established in Canadian Patent legislation or by the Courts, including methods of medical treatment, professional skills, and abstract theorems, for example.
In some cases, even when an invention does not seem to fall into one of the permitted categories or appears to be precluded from patentability by an exclusion, a patent can be obtained by carefully defining the protection being sought. For example, there is a widespread misconception that software is not patentable. Although pure software per se might not be patentable, the underlying methods implemented by software, systems that execute software, and even computer-readable media storing software might all be patentable. An invention relating to financial systems or commerce, which might initially be dismissed by an inventor or owner as an unpatentable business method, could also be patentable if defined properly in a patent application.
In addition to subject matter considerations, other criteria are applied in Canada to determine whether a patent should be granted: novelty, utility, and inventive ingenuity. Simply put, an invention is novel if it is not identical to any previously known technologies, and an invention that has a real-world use or effect will normally be considered to possess utility. Inventive ingenuity, also often referred to as obviousness, can be much more difficult to gauge. Obviousness effectively becomes a question of differences between an invention and known technologies. The actual differences, their effects, the problems they solve, and whether a person working in the technical field of the invention could be expected to revise the known technologies in the same manner, may all be pertinent to the issue of obviousness.
In short, an invention might satisfy subject matter and other patentability requirements to different degrees, and the patenting process varies accordingly. The patenting process for a pioneer invention involving a new machine that breaks new ground in a technical field, as in the case of the above patent to Bombardier, might be more straightforward and require less effort than the process for a software-implemented invention having less substantial differences over known technologies.