Evaluating your idea

"Got an idea?"

Your lawyer or agent should, after a full disclosure from you, be able to tell you whether
or not your idea or creation is one that may be capable of some form of intellectual
property protection.

In the case of patents, Canada and many other countries will only grant patents for ideas that have not been disclosed in patents or literature previously published.

Thus if patent protection seems possible, it is usually recommended that searches be conducted to determine if other patents or literature already exist that may be pertinent
to your idea.

The searches made before filing a patent application may reveal pertinent patents and/or literature. Such findings may help to avoid rejection of your application or clarify those features of your idea that are not found in the earlier material. Further, since a patent may be challenged later in Court on the basis of prior art, it is important to make sure that the pertinent material has been looked for and reviewed.

These searches may be made in a variety of ways depending on the nature and subject matter of the idea. They may include computerized searches of various data bases as well as visual searches by persons skilled in such matters in the public records of the Canadian, United States or other foreign Patent Offices, or in the libraries of particular organizations. The cost of a patent search depends on the amount of time spent, which in turn depends on the nature and complexity of the subject matter.

If your idea is in the form of a design used to ornament something you first must decide if you are going to make fifty or more copies having that design applied to it; if you are, then it may be recommended that you apply for an industrial design registration. Sometimes, a search of material in the public records of the Canadian Industrial Design Office may be recommended together with a search of library material that may be available in Canada on the subject matter, since an industrial design, in order to be validly registered must be new and not previously published in Canada.

If your idea is one that is the subject of copyright, no search is necessary as long as you can fairly say that your work is original to you and was not copied.

Copyright protection is available for a collection of other peoples’ work that you have arranged or presented in a unique way or to which you have made changes or added material. In this case your protection extends only to the particular arrangement including the changes, and does not extend to the work of others. Also, in the case of a collection, you must obtain permission from the copyright owners of each of the other works that you have used to create the collection.

In Canada, no registration of copyright is necessary as long as (a) you, as author, were a Canadian citizen, landed immigrant, British subject, or citizen of a country belonging to the Berne Convention (the United States is one such country) and, (b) as long as you have first made and distributed copies of the work in Canada or in one of those other countries. The copyright registration procedure is quite straight forward and the registration serves as legal notice of your claim to copyright. Whether or not registration of copyright is obtained, it is often recommended that a copyright notice be put on the work to advise others that you claim rights in the book or literary piece. For example, in the case of a literary work, the notice should be placed just below the title or on the title page. The notice should include the owner’s name, the word copyright or the symbol, and if copies have been made and distributed, the year that this was first done.

Your idea may be one that is kept as a trade secret. There may be several reasons for this. For instance, the idea may be one that is not capable of patent protection or you may find patent protection too costly, or you may not want to get a patent since a patent necessarily makes an idea public. You may prefer to keep your idea a secret if you can. Your lawyer will explain to you what persons must keep a secret confidential and what kind of contracts may be prepared and signed in order to have people formally agree to keep a secret. It must be remembered, however, that most secrets cannot be kept forever. Once a secret is revealed, your only remedy may be for damages and some form of injunction against the person who improperly revealed the secret, if such person can be found and if such person has any funds to pay damages.