眾律國際法律事務所

眾律國際法律事務所 專利工程師暨法務專員林春宏

美國柏克萊加州大學 分子生物學士
美國柏克萊加州大學 資訊管理 碩士
加拿大英屬哥倫比亞大學 法律博士

2012-12-10

Canadian Patent Law (Novelty)

According to the Canadian Constitution, the federal government has exclusive jurisdiction over granting of patents. The Canadian Patent Act, enacted by the federal government, sets the criteria for patentability, including requirements such as novelty, non-obviousness and utility.

The statutory requirements for novelty are codified under section 28.2 of the Canadian Patent Act (R.S.C., 1985, c. P-4). The Act specifies the following requirements:

(1) The subject matter defined by a claim in an application for a patent in Canada (the “pending application”) must not have been disclosed

(a) more than one year before the filing date by the applicant, or by a person who obtained knowledge, directly or indirectly, from the applicant, in such a manner that the subject-matter became available to the public in Canada or elsewhere;

(b) before the claim date by a person not mentioned in paragraph (a) in such a manner that the subject-matter became available to the public in Canada or elsewhere;

(c) in an application for a patent that is filed in Canada by a person other than the applicant, and has a filing date that is before the claim date;

….

Therefore, section 28.2 bars patent applications if the applicant, or someone who acquired their knowledge from the applicant, made the invention public more than a year before filing their patent applications. Section 28.2 also blocks patent applications if anyone else made the invention public prior to the filing of patent applications by the applicant, or if a patent application concerning the invention has already been filed by someone else earlier.

Reference:

Section 28.2 of the Canadian Patent Act (R.S.C., 1985, c. P-4)

http://laws-lois.justice.gc.ca/eng/acts/P-4/page-17.html?term=public#s-28.2