Prior art is another term which is used to refer to patents and publications that are made in a relevant timeframe before the filing date of your patent application for the purpose of understanding the general public knowledge in the field of the invention and to understand any impact on patentability. Prior art is oftentimes also referred to in the context of the knowledge of a reasonable person skilled in the subject area of your invention at the relevant time period.
It is possible in limited circumstances to make a late national phase entry of a PCT application in Canada up to 12 months after the 30 month deadline. Until recently this was accomplished for any applicant simply by requesting reinstatement of the application. As of late October 2019 there is now a requirement to demonstrate nonintentional abandonment in order to take advantage of the 12 month reinstatement timeframe. This change in reinstatement and late national entry practice in 2019 is a substantial alteration of previous Canadian patent practice and patent practitioners and patent applicants should be aware of the change in practice insofar as it might affect their strategies. We can provide further information and definitive advice on this should you have a situation arise in which you need to contemplate a late national entry.
Many countries require the payment of periodic maintenance fees to maintain the validity of your patent applications or patent registrations. In Canada, maintenance fees are payable annually beginning on the second anniversary of the Canadian filing date. These fees themselves, payable to the patent office, range from $50 for a small entity for the first few years upwards through several hundred dollars towards the end of a patent term. We can assist you with the management of ongoing payment of maintenance fees in Canada and abroad.
Patents and patent applications are territorially limited. Your Canadian patent application does not provide protection outside the borders of Canada. A Canadian patent application can be used to form the priority basis for filing in many other international jurisdictions, and there are a number of different international filing strategies which can be employed to streamline an international patent process if broadly-based geographic protection is desired.
Generally speaking if you are going to file for patent protection for an invention you should consider this as soon as possible following the conception of your idea, to avoid any problematic public disclosure of the invention which might have a negative impact on patentability. Patentability is significantly limited in many countries if the invention is disclosed to the public in advance of the filing of a patent application.
There is no requirement to file a patent application on a new idea or invention if you do not wish to do so. However, without a patent you do not have the same statutory ability to monopolize or enforce exclusivity around your idea and stop others from copying it. You should consider early in your ideation process what your patent strategy will be, to avoid early disclosure or early decisions which inhibit your patentability should you later wish to do so.
Commencing in 2012 the Canadian trademarks office announced that they would begin accepting applications for the registration of sound trademarks. This announcement and position at that time followed the direction or position of trademark authorities in other countries were sound trademarks had previously been registrable for some time .
At the present time the Canadian trademark, once registered pursuant to the Trademarks Act, remains registered for 10 years from the date of registration or renewal. A Canadian trademark registration can be renewed indefinitely, 10 years at a time, so long as the trademark is still in use in commerce. Terms and registration validity rules vary from country to country. As you expand the geographic scope of your trademark coverage, monitoring registration terms becomes more difficult – this is something we can help with if you need a hand.
There is no such thing as a global trademark registration. There are a couple of commonly used procedures and approaches to securing international trademark coverage, including filing individual applications in countries of interest or the filing of an application for international registration pursuant to the Madrid Protocol which Canada entered in mid 2019. The Madrid Protocol provides a streamlined international filing process.
It is also possible to protect your trademark on a regional basis in certain areas of the world, including in Europe for example.
Planning for protection of your trademarks in foreign jurisdictions as you expand the geographic footprint of your market is important in your overall business plan.
Public use of your trademark in Canada starts to create or crystallize common-law rights in the brand that you are choosing to use. Filing a trademark application in the Canadian trademark office will formalize your rights in your mark. There is a benefit to filing your trademark application sooner rather than later in so far as it will create public notice of your intention and claimed rights in the trademark, as well as potentially creating a bar in the trademark registry to a third party who wished to adopt a similar trademark in your channel of trade in the future.
A trademark owner can acquire significant rights in their trademark in a market simply by adopting and using the mark in the marketplace. Registration does present significant benefits in terms of public notice and the enforceability of a trademark in Canada and many countries. If you are planning on using your trademark on a nonregistered basis, some basic record capture to be able to prove use of the trademark at some point in the future as required is helpful. We can assist you in the development of these practices and a trademark inventory should you wish to do so.
A copyright notice typically includes the© as well as the name of the copyright holder and the year of publication of the work in question. Please contact us if you require assistance with the preparation of a copyright notice for use in your material. It is not necessary to mark your work in Canada with a copyright notice to establish a claimed ownership of the copyright in that work, however marking requirements vary between countries.
The current term of a copyright in Canada is 50 years after the life of the author. There are a small number of exceptions to this general rule. Copyright terms vary in other countries.
In Canada, copyright exists automatically in your work as of the time of its creation. While it is not necessary to register your copyright it is oftentimes desirable from an enforcement perspective since there are additional rights that accrue to the owner of a registered copyright and enforcement actions are simplified to a degree. Registration of your copyright also provides an ability to strengthen and evidence your copyright ownership. If you need help with copyright registration please feel free to contact us.