5. Canadian Intellectual Property

5.1 Patents

• Patents are basically a unique registration method that allows inventors to disclose, and freely discuss inventions, while protecting the time and effort they invested in development. They generally have 17 years to profit from the patent.

• A patent can only be given for something physically planned, or demonstratable. [Permutit Co. v. Borrowman] These inventions must also have novelty and skill [General Electric Company, Limited v. Fada Radio, Limited]

• Patent rights may be assigned or transferred legally.

• Patents may be infringed, if this occurs the patent holder may sue for damages (typically lost profit)

• Generally patent developed by employees don’t become the property of the employer. [Willard’s Chocolates Ltd. v. Bardsley] In some cases the employee is specifically paid to be creative. In these cases the employer will hold the patent rights. [British Reinforced Concrete Engineering Co. Limited v. Lind]

5.2 Trademarks

• Small symbols, names or designs (marks) that are used to distinguish one product from others. A registered trademark uses the symbol ‘T.M.’ or an ‘R’ in a circle. This prohibits the unauthorized use anyplace else in Canada.

• Trademarks must,

not be a name (except for deceased more than 30 years)

not easily confused with other words commonly used for that product

similar to already registered trademarks

• The trademark owner may permit others to use the trademark and these may also be officially registered.

• a trademark registration is valid for 15 years, but can be renewed indefinitely.

• infringement on a trademark can be dealt with by restraining orders, civil suits, or in criminal courts.

5.3 Copyright

• A copyright is used to restrict the right to copy or perform certain creative works.

• copyrights generally exist until 50 years after the authors death (in most cases)

• copyrights can be registered (optional) but if the copyright is to be assigned or licensed to another party, it should be registered.

• engineering plans can be copyrighted.

5.4 Industrial Designs

• This is a protected design that is novel and original and generally refers to a sculpture, shape, configuration or pattern that is aesthetic. The functional components cannot be considered.

• This can be registered for 5 years and then 5 more.

• This design can be assigned to others with written permission. This typically leads to licensing the design.

• An employer owns all rights to industrial designs.

• This design is formally registered.

5.5 Trade Secrets

• A similar device to patents except there is no public disclosure, and it may include information, or other non-patentable things. Generally a trade secret permits a business advantage over the competition (“industrial know-how”)

• If somebody is given a trade secret (and it is made clear that it is both valuable and confidential), then they expose the trade secret, they can be sued for damages.

• The legal factors to determine secrecy are,

similar knowledge outside the business

measures taken to guard the secret

the competitive value of the information

the development cost for the information

• Employers can restrain or sue former employees with regard to trade secrets. [Amber Size & Chemical Co. Ltd. v. Menzel] Although courts will be reluctant to prevent a former employee from earning a living.

• Corporations may also be liable for trade secrets if they are entrusted with them, and then disclose them.


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