Patent Primer

When should I apply for patent protection?

Canada and the United States have adopted a first-to-file patent system. A first-to-file system is essentially a race to the patent office. This means that the patent application that is filed with the patent office first has priority over a later-filed application claiming the same subject matter. For this reason, it is beneficial to apply for patent protection as soon as you have an invention that appears patentable.

However, one of the requirements to obtain a valid patent is that a patent application must disclose the claimed invention in sufficient detail to enable a person skilled in the art to carry out the invention. Therefore, mere ideas or concepts are generally insufficient. It is essential to reduce an invention to practice before applying for patent protection. If you are able to describe to others in the field how you would make and use your invention, so that they could replicate the invention based on your description, you have probably reduced your invention to practice such that filing a patent application should be considered.

The patent office does not require that a working prototype be made before an application is filed, although a prototype or clear drawings showing how the invention will be made are often helpful in preparing a patent application, if available. Frequently, new issues arise or design changes are made in the course of developing a prototype. However, it is not necessary to fine tune every single feature of your invention before you apply for patent protection. There is a balance between obtaining an early application filing date and arriving at a product that is ready to market. Each circumstance is unique. It is important to seek a registered patent agent at an early stage to advise on filing options that suit your unique circumstances.