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Why You Should Patent

While you are developing an idea, it is possible that you have unknown competition. Filing a patent application as soon as possible increases your chances of acquiring a legal claim to the invention. Even if you could prove that you were the first to come up with an invention, you would lose the patent rights if a competitor filed before you did.

On the other hand, filing too soon may mean omitting essential details from your application and you may have to reapply, adding to your expenses and risking future patent disputes.

Artist's rendition of E. Lawson Fenerty's 1869 SKATES, side back view

Source
"Skates." Patent no. 180, filed by E. Lawson Fenerty, 1869. Side back view

It is crucial that you not advertise, display, or publish information about your invention too soon. Public disclosure of an invention before the filing of a patent application makes it impossible to obtain a valid patent. The exception in Canada is if the disclosure was made by the inventor, or someone who learned of the invention from the inventor, less than one year before filing. Most other countries require filing before use or written disclosure anywhere.

Patent infringement occurs when someone makes, uses or sells your patented invention without your permission in a country that has granted you a patent, and during the length of the patent's term. You may sue for damages in the appropriate court if you believe your patent is infringed. The defendant may argue that an infringement did not occur, or may attack the validity of the patent.

Court decisions on patent infringement are based on the language of the claims themselves. If the defendant's actions do not fall within the wording of your patent claim, or if the patent is declared invalid for any reason, the court will rule that there is no infringement.

The law of protection before patent grant allows you to sue for reasonable damages when infringements occur between the date that your application was made available for public inspection (usually 18 months after filing), and the date that you obtained a grant.

Patent marking and "patent pending" are two very different things. The Patent Act does not require that patents be marked as such. However, it is against the law in Canada to mark an item as patented when it is not. You can mark your invention with "Patent Applied For" or "Patent Pending" once you have filed your application. These phrases have no legal effect, but act as a warning to others that you will be able to enforce the exclusive right to manufacture the invention once a patent is granted.

Trade secret protection is an alternative way to protect your invention. Simply keep the information about your invention secret and sell it to a willing buyer. The problem with this method is that another person may independently invent or discover your trade secret. There is then nothing to stop that person from publishing information about your invention or applying for a patent.