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Protection of Intellectual Property (Page 3)
DISCLAIMER - The information provided here is of a general nature and may not apply to any specific or particular situation. It is not to be considered as a legal advice nor presumed to be indefinitely up to date.
3. Patents
For start-up companies, patents protect their technologies and may be attractive to potential investors. In Canada the Patent Act governs patent protection. Pursuant to the Patent Act, Canadian Patent Office grants a patent. Any “art, process, machine manufacture or composition of matter?or any new and useful “improvement?of one of these qualifiers is patentable in Canada if it is “new and useful? Unlike in the US where the courts stated that “anything under the sun that is made by man? is patentable, the underlying idea of the Canadian patent system is to protect ideas of “practical application in industry, trade or commerce? Canadian judges are reluctant to extend the concept of invention beyond established precedent ? “it is Parliament job’s, not the courts, to extend or contract patentability? The novelty requirement means that the invention must be new and not previously patented, described, or otherwise anticipated. Non-obviousness requires that the invention, in light of the prior art, is not obvious to a person skilled in such prior art. The usefulness element requires the invention to have specific and substantial benefits that the inventor must disclose.
To register a patent an inventor must truthfully disclose in the patent petition
the substance of an invention. The Patent Act provides that even innocently made
false “material allegations?invalidate the patent. Omissions made willfully for
the purpose of misleading also invalidate the patent. A Canadian registered
patent typically grants to an inventor a twenty-year monopoly and allows the
owner to exclude others from making, using, importing, offering for sale, or
selling the invention. If a third party infringes a patent, the patent holder
can bring an action to a court of law and through litigation stop the infringing
user from continued infringement of the patent and can also seek damages, legal
fees, and costs. There is no such thing as an international patent. A patent has
to be registered in each and every country the entrepreneur wants to have a
protection. Patents are not renewable, and when the term expires the subject
matter of the patent becomes part of the public domain and is open to public
use.
Some matters are not patentable. Patenting is usually denied where adequate protection exists under other intellectual property laws. Semiconductor topographies are protected under the Integrated Circuit Topographies Act, plant varieties under the PBR Act, designs under the Industrial Design Act, trademarks under the Trademarks Act and an action in tort of “passing-off? and artistic material under the Copyright Act. Patentability also is not available in Canada to natural phenomena, scientific principles, abstract theorems and business methods. It is worth noting that in 1998 the Federal Court of the United States held for the first time that a business method is patentable. In State Street Bank & Trust v. Signature Financial Group Inc., the court concluded that a financial program that calculated daily mutual fund contributions to investment portfolios qualified for patent protection.
Many countries refuse to grant patents to for computer programs. The Canadian Patent Office has adopted this position since 1978 and treats computer programs as algorithms ?“a set of rules or processes for solving a problem in a finite number of steps? The courts in Canada reason that “a program may do sums faster than an unaided human, but that does not make doing sums patentable even if useful data results? This was used by the Patent Appeal Board in the Schlumberger Application to justify denial of the issuing of a patent with respect to a program-related invention. This refusal was upheld by the Federal Court of Appeal in Schulmberger Canada Ltd. v. Commissioner of Patents and leave to appeal to the Supreme Court of Canada was denied. The invention was a computer-operated process for analyzing measurements obtained from holes drilled as part of oil and gas exploration. The Patent Appeal Board, in denying the application, stated that 'claims to a computing apparatus programmed in a novel manner, where the patentable advance is in the apparatus itself, are patentable'; and 'claims to a method or process carried out with a specific novel computing apparatus devised to implement a newly discovered idea are patentable.'
Since Schlumberger, the Patent Office has been more liberal in its interpretation of the limitation in the Patents Act and has allowed the issuance of patents for certain software. Patents are now granted by the Canadian Patent Office for inventions implemented by computer programs. The position taken has continued to be that to be patentable, an invention must do more than merely perform a calculation, and be more than an algorithm embodied in software. The apparatus or circuitry for implementing the invention must also be claimed. In practice, however, the hardware requirements of software inventions are claimed in such general terms that their significance is limited to a recognition that a physical embodiment of the invention is required. The result has been that patents have issued for inventions that are principally algorithms. For example, patents have been granted to the inventions that proposed logic for processing elevator calls, and calculations and comparisons of voice patterns for use in speech recognition. It appears that patent protection could be afforded to novel software in Canada. Since 1981 United States allow apparatus claims for a general computer as modified by a new computer program.
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