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Popular misconceptions about patent law

1. Ideas are patentable

The most entrenched misconception about patents concerns the patentability of ideas. However, strictly speaking, the ideas are not patentable. Intellectual property lawyers often use the word “idea” as a shorthand substitute for “invention” or the physical embodiment of an idea. Perhaps this is so because there is no requirement that an invention be reduced to actual practice prior to the issuance of the patent or before a patent application is filed, it being sufficient that the patent specification contains an adequate description to allow one skilled in the art to which it belongs to reduce it to practice. Although ideas are not patentable, an idea is often the inspiration for an invention. For example, James Watt’s improvement of the steam engine was based on the idea of ​​employing a separate chamber to condense steam.

2. An invention must be put into practice before it can be patented

Many people work under the misconception that an invention must at least have been tested before an application can be submitted. There is no such requirement, at least not for utility and design inventions. Such inventions need not have been tested or practiced in any way before a patent covering them is granted. All that is required is that the invention be described in terms so complete, clear, concise and accurate as to enable any person skilled in the art to which it belongs, or to which it is most closely related, to make and use the same. . .

3. The patent will generate money spontaneously for its owner

Many people’s impression of the economic value of a patent is inflated. A patent is in no way equivalent to a millionaire club entry. Patent protection is limited in duration, expensive and uncertain. The belief that if you build a better mousetrap, the world will find its way to your doorstep, bypasses several very real obstacles in the marketplace and in the courts. A patent is simply a negative right, that is, a patent is not the grant of the right to do or do something, but rather the grant of the right to prevent others from doing or doing something. A patent is not a certificate of merit, but an incentive to disclose. An invention patent applies to something for which there is no established market. Consequently, before income can be derived from the invention, substantial sums must be invested in production and marketing. Furthermore, the patent only has value to avoid a sales diversion to competitors. If demand is low and / or no rival manufacturer appears on the scene, a patent is superfluous.

4. A picture is worth a thousand words

Another misconception about patents is generated by the application of the maxim attributed to Confucius, namely that “a picture is worth a thousand words.” This aphorism, although almost universally applicable, is not valid for patent claims. In fact, the opposite is much closer to the truth: a word can be worth ten thousand images. In other words, the greater the detail in which the invention is set forth in a claim, the narrower the scope of that claim. To infringe a claim, it would be necessary for a physical object to possess all the characteristics required by the claim.

5. Personal use is not patent infringement

It is wrongly believed that only commercial exploitation constitutes infringement and that making and using a patented invention for personal use does not constitute legally actionable harm. The Patent Law, however, does not contain an express exemption for personal use, but rather declares that whoever without authorization makes, uses, offers to sell, sells within Canada or imports into Canada any invention patented within Canada during the term of the patent therefore infringes the patent.

6. Independent invention is not a patent infringement

In Canada, the patent is for the first to apply. In the United States, the patent is for the first to invent. Both Canadian and US patents carry the right to exclude everyone else from the manufacture, use or sale of the invention as defined in the patent claims. Therefore, it is not a defense to a patent infringement claim that the defendant was unaware of the patent and / or independently invented it. If what the defendant does infringes, he is liable as the infringer, whether the defendant thought it through independently or got the idea from the teachings of the patent.

7. Patent Pending Notice Provides Protection Against Infringement

Perhaps the most widespread misconceptions about patents relate to the use of the words “patent pending.” Marking items as “patent pending” indicates that a patent has been applied for and that a patent application is pending with the Patent Office. This serves as a warning to potential competitors that the marked items may not be in the public domain and may be subject to an incipient right to patent protection. Therefore, by the time an item receives the “patent pending” seal, the invention to which that marking refers is not patented and perhaps not even patentable. “Patent pending” properly simply means that a patent application is pending with the Patent Office, not that a patent is in effect at that time. Therefore, the article to which this language is attached is not technically, at the time of its marking, subject to a surviving patent covering the invention to which the marking refers. A “patent pending” notice does not give one any knowledge and therefore cannot be the basis for a finding of intentional infringement. To intentionally infringe a patent, the patent must exist and one must have knowledge of it.

Patent Attorney Toronto

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