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Turning your Idea into a Business: Protect your Product with a Patent

By Michelle Collins |

If you've been following this series over the past few months you know that we've covered what's involved in building a prototype, the keys to marketing and business planning, and where to go for help. This time we're going to take a look at how to protect what you've created. After all of your hard work and effort you don't want someone else reaping the benefits with a knock-off.

First off, you need to know that there is a difference between protecting an idea and a product. An idea on it's own won't qualify for any legal protection. It isn't until the idea takes on some “concrete” form that it becomes eligible. For example, your idea for a new running shoe can't be protected. However, once you make up a drawing, or have a prototype you can now claim legal ownership of the shoe.

There are several ways that you can protect your intellectual property. Among them are patents, trade-marks, copyrights, industrial designs, and integrated topographies. To research these options in detail you can visit the Canadian Intellectual Property Office (CIPO) website. As an inventor you are likely most curious about the patent.

Patents: Where to start
A patent will prevent others from copying, using or selling your creation for a 20-year period from the time that you file your application. In turn, you can use this patent to manufacture your invention exclusively or you can sell or license it.

In order to receive a patent, you must first apply. The process is lengthy and expensive. Your first step is to go through all of the other patents registered with CIPO. You may find that a patent has been registered for your invention yet no action has been taken.

It could be a wise decision to hire a patent agent to help you through this process. They should be able to know what to look for and find any details that you could miss. If you want to go through this process on your own, it means paying a visit to Hull, Quebec to visit the Patent Office in person.

The Written Application
Having done your search and finding that your invention truly is unique you are ready to move forward with the application. There are two components that make up the written application: a detailed description of the invention and why it is useful, and the boundaries that you seek for the patent.

It is important that your invention is complete, because if you want to go back and change something it may mean starting the application process all over again. This clarity is also important in this written stage, as your description must be understood by anyone who wishes to make or use the product.

Once your application has been submitted it will sit on file for 18 months. Over this time period anyone can read it over. You'll want to keep track of the filing date, if there is a time lapse you leave the door open to competitors to file their own applications on your invention.

From the date that you file your application you have five years to request that a representative from the Patent Office come and examine your invention. There is another fee attached to this and if you don't make the official request within the timeframe your application will be considered abandoned.

The examiner will study your invention and applications, comparing them to other patents to see how close they come to the statements you make in your description. If the examiner finds anything in your description that is wrong, outdated, or already in existence they will send you a letter of objection known as the Patent Office Action.

If this letter lands in your mailbox it doesn't mean the end of your patent attempts. You will be given the chance to make any amendments and have your invention re-examined. There will be a specified time that this can be done in the letter.

This process can continue back and forth until the Patent Officer either accepts your application or makes a final rejection. If you don't agree with this final decision you can appeal to the Commissioner of Patents who will review the case.

Once you passed all of the requirements, and paid all of the fees your patent will allow you to manufacture your invention in Canada for the next 20 years. If you wish to file the patent in other countries you will have to go through the process again with offices in those regions.

Patents not always necessary
“I always counsel my clients that a patent is not everything. Don't immediately believe that you have to have a patent to be successful because you don't,” says Beverly Sheridan, president of Techonology NOW, which helps technology inventors bring their ideas to market.

While having a patent gives you exclusive rights that make your product more attractive to investors, it must be weighed against the costs and time needed to secure this protection. Remember, that while you play the waiting game another inventor could be out there producing a more advanced version of your invention. Another issue that comes to mind is will you be able to afford the court costs should you need to defend your patent rights?

“It may make more strategic sense to invest the money in getting into the market quickly, hitting it hard and fast, getting in and getting out and recouping your investment that way. . . You know that either the competition is going to catch up and flood the market with duplicate products or the technology is just going to move on and something better is going to replace what you've developed,” says Sheridan.

Other parts in this series:

Part 1 - Getting an idea and getting started.
Part 2 - Market research, prototypes and product evaluations.
Part 3 - Creating an effective business plan for your new product.
Part 4 - Before the product launch...
Part 5 - Protect your product with a patent.

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