 Hello, it's Waylon Chow. This is Intellectual Property Law Part E. In this part, we will examine patents. Patents, just like other IP law, involve striking a balance between providing individual benefits and societal benefits. So with patents, that's called the patent bargain. On the one side, we have individual benefits. So the individual benefits are meant to provide an economic incentive for research and development by providing a time-limited monopoly, which is the patent. In terms of societal benefits, the patent system provides for the sharing of information and knowledge by requiring a full description of the invention to be filed with the patent office. So that information is available to the public that can be used to create further innovations. And also, after the patent expires, the invention becomes a public domain. What do patents apply to? They apply to inventions and improvements to existing inventions. There are four requirements for patentability. The subject matter must be patentable. There must be novelty, utility, and the innovation must be non-obvious. What do patents apply to? Or in other words, what is considered to be patentable subject matter? Under the Patent Act, what is patentable are inventions which are considered to be new and useful art, process, machine, manufacturer, or composition of matter. It may include improvements on existing inventions. And a recent development is that some business methods may be patentable. The key example here is the Amazon one-click ordering system. So when you go on Amazon's website and you find something that you want to purchase, Amazon has created a system where as long as you've already registered with Amazon, you have an account, you can buy that item by just clicking on one button. Instead of the usual process which takes many more clicks where you put the item into a virtual shopping cart and then you need to go through a number of different steps to check out. So this makes it much easier for Amazon customers to purchase an item from their website. So Amazon a few years ago was granted a patent in Canada before that Amazon had already received a patent in the U.S. But Amazon did have some significant difficulty in getting a patent in Canada. They were originally rejected. They had to fight it in court and eventually they won and now they do have a patent for their one-click ordering system. But still highly unclear as to what criteria a business method has to meet in order to be patentable in Canada. What is not patentable under the Patent Act are natural laws, scientific principles, abstract theorem. So anything that falls into any of those categories is not patentable. For example, Albert Einstein's formula E equals MC squared is considered to be a natural law or scientific principle and therefore is not patentable. Also in Canada computer software is not patentable because it is considered to be a scientific principle or abstract theorem. In contrast in the U.S. software is patentable. What is also not patentable is any kind of higher life form such as plants or animals. Now on a more microscopic level the genetically modified genes or cells that may make up a plant or animal, those genes or cells are capable of being patented. The second requirement for patentability is novelty. What novelty means is that the invention has not previously been disclosed or become known or otherwise made available to the public. In other words there is no public knowledge of this invention. So what that means is that if you've created an invention you should apply for the patent before disclosing or marketing or doing any sale of the invention. So since a patent is granted to the first person to file, not the first person to invent the invention, it's very important to apply for a patent as soon as possible once the essential elements of the invention are complete. So the picture here shows the U.S. patent application by Apple for something called a magic keyboard. The third requirement for patentability is utility which means that an invention must both work and have a useful function. The fourth requirement is non-obvious in that the innovation involved in the invention is not obvious to a person of average skill in the field. So an example, a seemingly simple example of this is this combination drinking straw and spoon. And a patent was granted for this in Canada which would mean that it was accepted that this was a non-obvious innovation by combining the straw and spoon together into one item. How do you obtain a patent? So a patent is obtained by filing an application with the Canadian Patent Office and you usually need to hire someone called a patent agent to help assist you with the preparation of the application. So that application has to provide a complete description of the invention which is then made available to the public. The process of obtaining the patent is not a quick one, it can take from two to five years and it is fairly costly to go through that process. What legal rights do you have by owning a patent? You have an exclusive right of making, constructing and using the invention and selling it to others to be used. So this monopoly right lasts for 20 years. There is an exception in that a patent invention can be used by others for research, experimental and commercial uses. Now unlike copyright, patents of inventions by an employee belong to the employee unless the contract stipulates otherwise. If you remember with copyright, in that same situation the copyright work would belong to the employer. To economically exploit a patent, the owner may do a number of different things. They can choose to develop and market the product themselves or they can license the patent to have someone else bring the product to market. The patent owner is then paid royalties, so that license can be exclusive or non-exclusive. Another thing that the patent owner may do is just sell the patent outright to another person. Where a patent is infringed, that patent infringement is a civil wrong which entitles the patent owner to sue the infringer in a civil lawsuit. The potential remedies would be very similar to the remedies available for a trademark. Damages, accounting of profits, injunction and delivery of the infringing products. Having a Canadian patent only gives the patent owner monopoly rights in Canada. Patents are done on a per country basis. There is no such thing as an international patent. But there are international treaties dealing with patents. For patent protection in foreign countries that are members of the Paris Convention for the Protection of Industrial Property which includes Canada, the foreign patent application is dated as of the date of the Canadian application. That foreign patent application must be within one year of the Canadian application. You get the Canadian application for a patent put in first and then you have a year to apply for a patent in the foreign country. That's also a member of the Paris Convention. Filing under the Patent Cooperation Treaty or European Patent Convention has the same effect as filing in each country under that treaty. So if you make a patent application under the European Patent Convention, that application is effective for all European countries that are a part of that convention.