Q: I farm and work for a local agricultural equipment dealer. In the winter I spend a lot of time in my shop. I’ve come up with a new invention that I think will be useful and popular on the farm. I’d like to ensure I get credit for it and money from it. What do I do?
A: This problem falls under the patent branch of the law of intellectual property. IP law covers protection for copyright (works by artists, writers, musicians) and trademarks (businesses with a distinctive name or logo). Patents deal with inventions.
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Canada’s Patent Act is modelled after that created in the United States in the 1790s by Thomas Jefferson, and it is virtually unchanged after 200 years.
To seek a patent, you have to have invented some thing or some process that is new and innovative. It can be brand new, or an improvement on existing technology.
Patents are essentially a deal between the inventor and the rest of the world. In exchange for disclosure of the innovation and how it works, the inventor gets a monopoly on its use for a time up to 20 years. When the patent finally expires, anyone can use it.
In agriculture, there are patents covering everything from crops to combines. Invention of a thing or improvement is fairly straightforward: a new type of baler, a chaff-saver attachment, a new herbicide. Processes are tougher to define, but they sometimes include items such as a genetically altered plant, or a new means of incorporating fertilizer into the soil. In either case, there has to be something novel and innovative, and it cannot be so plain and obvious that anyone in the field could think of it.
To get a patent and the protection that comes with it, you will have to make an application to a branch of the federal government called the Canadian Intellectual Property Office. CIPO maintains an excellent searchable website at: strategis.ic.gc.ca/sc_mrksv/cipo/welcome/welcom-e.html and I recommend visiting it before embarking on this journey.
From start to finish, getting your patent registered can easily take up to 24 months. During that time you can use your invention. You will often see the words “patent pending” on new items.
It is important to be first in line. History has numerous examples of competing inventions similar in nature. Most inventors use a patent agent or patent lawyer, and many of the best are in Ottawa where CIPO is located.
Also, CIPO can give you patent rights for Canada only. To get an American patent, you must also apply to the U.S. Patent Office. To get other foreign patents, you must apply under their law. CIPO does not have to give you a patent. Only if you have something truly new will CIPO’s expert inspectors agree you are entitled to patent the item.
As well as being time-consuming, this is not a cheap process. It will cost a lot of money to patent your invention, so be absolutely sure there is a market for it so you can get those costs back and make a profit.
I’m unclear from your question just where you invented this item. Was it on the job, or in your shop entirely on your own time? Even if on your own time, does the invention have anything to do with your employer’s business? If you came up with this while working or even at home, but it is related to your employer’s business, there is a possibility that the patent belongs to your employer and not to you. I’d hate to see you go through the long, expensive patent process only to give it away.
Most money on patents is made by licensing them for other people’s use. One of my favourites is the guy who invented the door latch that says “occupied” when locked and “vacant” when open. It’s so simple, yet every bus, train and plane uses it under licence. The guy made a fortune. Often the most lucrative patents are basic and simple.
Finally, if the invention belongs to you and you manage to get it patented, you have to enforce it. The Canadian law of patents gives you the sole right to use your item, but CIPO doesn’t act as the patent police. If you find out someone else is using your item without permission or paying you a fee, then you have to hire a lawyer to chase that person and get compensation.
Rick Danyliuk is a practising lawyer in Saskatoon with McDougall Gauley LLP. He also has experience in teaching and writing about legal issues. His columns are intended as general advice only. Individuals are encouraged to seek other opinions and/or personal counsel when dealing with legal matters.
