Canadian Patent Office

From Inventing aviation
Jump to navigation Jump to search

The Canadian Patent Office issued patents in Canada. It became CIPO which has the historic patents online.

It published the Canadian Patent Office Record with claims and selected illustrations from granted patents.

The Canadian patent classifications were in some cases very similar to USPC. In the case of aeronautics, the main category was CA 244, which differs from USPC 244 sometimes only superficially. However much of this must reflect a retroactive classification; we don't yet know much about how Canada classified patents at the time of the period we're studying.

Canadian patent law

The first Canadian patent law, passed in 1823, was modeled on the American law of 1793. The Canadian system was based on local law (statute) and operated differently from the British system. The British Crown could not grant patents in Canada.[1]

The fundamentals of the Canadian patent law, as of 1906, were as follows:

Any person who has invented any new and useful art, machine, manufacture, or composition of matter, or any new and useful improvement in any art, machine, manufacture or composition of matter, which was not known or used by any other person before his invention thereof, and which has not been in public use or sale with the consent or allowance of the inventor thereof, for more than one year previously to his application therefor in Canada, may, on a petition to that effect, presented to the Commissioner, and on compliance with the other requirements of this Act, obtain a patent granting to such person an exclusive property in such invention.
No patent shall issue for an invention which has an illicit object in view, or for any more scientific principle or abstract theorem.[2]

Canada (in 1913) was not a member of the International Convention for the Protection of Industrial Property. That probably means the priority rules for foreign filings did not apply, which would explain why we do not see clear priority to the U.S. date of filings for patents that seem to be the same as ones already filed in the U.S.


The formal documents and drawings required for a patent application area:

  1. Petition. Where the application is to be made through a solicitor or agent, a power of attorney should be incorporated with it or executed separately.
  2. Oath.
  3. Specifications in duplicate, signed in the presence of two witnesses.
  4. Extra or third copy of claims.
  5. Drawings on cardboard 8" x 13", with tracing in duplicate bearing certificate signed by applicant or his attorney in the presence of two witnesses.[3]

For "Rules of the Canadian Patent Office" see Fisher, Smart, & Lynch, 1913, Canadian Patent Law and Practice, p. 327.

The fee for a patent was $20 for 6 years (and $40 for 12 years, $60 for 18 years).[4]

American and other international applicants

Rationale for applying in Canada:

The geographical nearness of Canada to the United States, and the intimate commercial relations existing between the two countries, render Canada, in one sense, a part of the industrial market of America; and owing to its liberal patent laws, which are based closely upon our own, inventors generally find it advantageous to protect their interests in this country, which can be done from time to time by a very small outlay, and thus giving the inventor the advantage of disposing of his patent or dropping it if not found remunerative, before expending the total cost of the patent.[5]

Foreign applicants who already held patents in other countries could obtain a patent for the same invention in Canada if they applied within a year from the date on which the first foreign patent was issued. Foreign inventors could temporarily protect their rights in Canada by notifying the Candian office within three months of their original patent being granted. The Canadian patent would expire at the same time as the original foreign patent.[5]

In selling Canadian patents, the patentee will proceed in much the same way as in the United States, though he cannot expect, nor should he ask, more than about one-third as much for the Canadian patent as he receives, or expects, from the United States patent. [...]
It is in nearly all cases advisable for the inventor to first put his invention upon the market in the United States before trying to realize from his Canadian interests, as it will be found difficult to interest Canadian capital in a patent that has not been first put into practice here [...].[6]


(not yet integrated into the above) Patent systems already existed in the North American British provinces that united in 1867 to become Canada.[7][8] We do not have patent data from those provinces, but few if any would have been aeronautical. The patent rules were designed to encourage the establishment of industry there. The patent laws were modeled on the U.S. Patent Act of 1790.[7]

With the establishment of the Canadian Confederation, the new Canadian federal government had authority to give patents, and in 1869 Canada's Patent Act came into effect.[7] It gave priority on the first-to-invent principle used by the United States -- to decide priority of an invention, the principle is to give priority to the one who invented it first, without concern for who filed it first. The standard became instead the first-to-file principle - In a dispute over priority of an invention, that principle is to give priority to the one who filed first for a patent. This must have started in Europe. It seems less fair but is easier to administer.[7]

Canadian patent reforms tended to draw from Great Britain and from the U.S.

There was an international debate on the value of patents existed between pro- and anti-patent forces. Many governments agreed to the first patent treaty in 1883, the Paris Convention for the Protection of Industrial Property. Two key provisions of the Treaty were national treatment that obligated member states not to discriminate against foreigners, and recognition by member states of foreign patent application filing dates, known as convention priority rights.[7]

  • "Canada first harmonized its patent legislation with international practice in 1923, two years before joining the Paris Convention." -- Ah! Canada was not a member of the Paris Convention in the time of early aero.
  • PCT of 1970 -- Canada joined in 1990
  • Strasbourg Agreement concerning the IPC (1971) -- Canada joined in 1996
  • In the 1990s Canada joined a treaty concerning the classification of patents and the PCT. (p3-4)
  • The Patent Act was amended in 1987 to adopt a "European-style first-to-file patent system", while the contrasting "first-to-invent principle" continued to be used in the U.S. (p5)

The Canadian Patent Office was established in 1906. Now it is part of the Canadian Intellectual Property Office (CIPO), which administers "patents, trade-marks, copyright, industrial designs, and integrated circuit topography." (Duy, p6) (When did it move/rename?)

The basic steps of obtaining a Canadian patent have changed little since 1900. The "patentability criteria of novelty, non-obviousness and utility are virtually the same as they were" then.[7] But "the concept of what subject matters can be patented has expanded as new technologies are invented."[7]

  • Patent legislation is justified often by the idea that the nation granting patents will benefit from them, and sometimes by the idea that creators and inventors have natural rights over their creations. (Duy, p9)
  • "The first patent ... in what is now Canada was granted in 1791" in Quebec by a special ordinance. 30 years later there is more general legislation authorizing the granting of patents. (Duy, p9)
  • In the early 1900s, 80% of Canadian patents are held by foreigners. Now, it's over 90%, about half by U.S. patentees. (Duy, p9)
    • Research q: Were aero patents especially likely to be held by foreigners?
  • Since 1970, the UN agency WIPO administers the Paris Convention rules.
  • Criteria: "At the beginning of the nineteenth century, all countries having patent systems generally required patentable inventions to be both new and useful. Those two requirements have now been joined by a third: Patentable inventions must be new, useful and nonobvious. . . . Every nation in the World Trade Organization applies these three standards in awarding patents."[9] The Canadian legal definition of invention for purpose of patenting is almost unchanged since 1867: "any new and useful art, process, machine, manufacture or composition of matter, or any useful improvement [in these]". (Duy p12, citing section 2 of the Canadian Patent Act))
  • There are patent examiners. To get the phrasing right, most filers hire a registered patent agent. Virtually all these (nowadays) are members of the Intellectual Property Institute of Canada (IPIC), formerly known as the Patent and Trade Mark Institute of Canada (PTIC). PTIC was established in 1926. For more see Maybee and Mitchell (1985)
  • Canada has a "deferred examination system" ; patent applications are not automatically examined upon filing; instead an applicant after filing has five years to request the examination, that is, to request a grant of the patent. The application is said to be abandoned after the five years. (Duy, p13)
  • Major influential laws in deep history: Profisions enacted in Venic in 147; England's Status of Monopolies in 1624, US patent Act of 1790, US patent office launch of 1836 (which introduced examinations of patents), and Great Britain's Patent Act of 1852. (Duy p15)
  • The EPO was founded in 1978, folowing the European Patent Convention in 1973. This is NOT formally part of the EU and membership is not limited to EU states. (!!)
  • Unlike the US, Canada adopted compulsory licensing provisions from British practice (Duy, p16)
  • Canada joined the Paris convention in 1925. Two key provisions: recognition of foreign patent application filing date, known as "convention priority", and the obligation by convention participants to give patents by foreigners the same protection as patents of their own nationals. (p16)
  • Before Confederation (1867), the provinces had patent legislation whch favored local residdents and did not allow foreigners to obtain local patents. Patents could be obtained for (a monopoly on ) importing a technology without having invented it. (Duy, p17). The British North America Act of 1867 which established unified Canada assigned the Canadian federal government all the authority over patent legislation. The federal Patent Act came into effect in 1869. At some later time foreigners were allowed to obtain patents, and patent examiners were first hired. An early 1900s rule made patent applications secret until examination. In 1923 a rule change enabled Canada to join the Paris Convention. Only then did the application dates for foreign patents get priority. (?!) (so the early aero period doesn't have foreign filings in the formal sense !?!)
  • Duy section 6, pp 17-18, 28-29, and tables 2 and 3 on pp 35-36:[7]
  • patent examiners were hired starting circa 1869, or the legislation authorized them anyway
  • administration was by the Dept of Ag with the Minister of Ag as the official Commission Commissioner of Patents. The Patent Office was established by statue in 1906. "The first non-ministerial Commissioner of Patents was appointed in 1919." (p29)
  • 1820s: first Patent Acts in Lower and Upper Canada, with these rules: first-to-invent priority ; patents were for residents only ; patents could be granted for imported tech; patent term was 14 years
  • 1830-50s - first Patent Acts in Nova Scotia, New Brunswick, PEI, Newfoundland, and the then-Province of Canada (Ontario+Q)
  • 1869 federal Patent Act: patent term of 15 years, made up of three 5-year terms ; patents could be "impeached" if not "worked" (put to use) in Canada ; Minister of Ag was commissioner of patents
  • 1870s: federal Patent Act was extended to new provinces: Manitoba, BC, PEI ; a new federal Patent Act of 1872 allowed foreigners to obtain patents
  • 1880s-90s: federal Patent Act was extended to the NW territories ; patent term extended to 18 years in three 6-year periods ; new statutory authority to employe examiners ; Federal Exchequer Court could hear conflict proceedings to determine the first inventor and to hear impeachment proceedings
  • 1900-1919: Patent act extended to new provinces Albert and Saskatchewan ; patent applications were made secret; Exchequer Court authorized to hear appeals against refusals by the Patent office/commissioner to grant a patent ; compulsory licenses could be applied for "not working" a patent in Canada ; First appointed Commissioner of patents 1919 ; Patent Office moved from Ag to Trade and Commerce
  • 1920s third federal Patent Act 1923 - new rules about foods and medicines ; adopted Paris Convention priority rights for foreign filings ; patent term of 18 yers; provision for inventions made by public servants (govt employees)
  • A major reform occurred in 1923, giving priority right for corresponding foreign applications, apparently in prep to join the Paris Convention
  • Canada joined the Paris Convention in 1925. Then foreign patent applications got priority in the standard way, if they hadn't in 1923; timing unclear but probably has a more precise dating/history
  • patent terms were 18 years until 1935 when they were reduced to 17 years, presumably to match the intl standards


On patent history, from Duy and web searches


  1. Fisher, Smart, & Lynch, 1913, Canadian Patent Law and Practice, p. 2.

    From the time of the earliest local statutes dealing with patents the basis of the grant has been statutory and has not been the royal prerogative. The [Crown's] Statute of Monopolies has therefore had no application (Adams v. Bell [1850] 1 L.C.R. 136; Vanorman v. Leonard [1845] 2 U.C. Q.B. 72).
    As has been pointed out, the different foundation for grants of patents in England and Canada have produced widely different results (Electric Fireproofing Co. of Canada v. Electric Fireproofing Co. [1910] 43 S.C.R. 182, per Idington J., p. 186).

  2. Fisher, Smart, & Lynch, 1913, Canadian Patent Law and Practice, p. 6.
  3. Fisher, Smart, & Lynch, 1913, Canadian Patent Law and Practice, p. 72.
  4. Cresee, 1902, Practical Pointers for Patentees, p. 75.
  5. 5.0 5.1 Cresee, 1902, Practical Pointers for Patentees, p. 73–74.
  6. Cresee, 1902, Practical Pointers for Patentees, pp. 76–77.
  7. 7.0 7.1 7.2 7.3 7.4 7.5 7.6 7.7 Vic Duy. 2001. A Brief History of the Canadian Patent System. Canadian Biotechnology Advisory Committee
  8. w:Canadian Confederation
  9. John F. Duffy. Inventing invention: a case study of legal innovation. Working paper circa 2007 it seems; may have been published.