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History of the Patent Process in Canada

Electricity, textile machinery, steam power—some of the most important innovations to influence the modernization of the Western World were created during the height of the Industrial Revolution. In a short period of time, and with unprecedented speed, critical changes unfolded in almost every area of human activity. It was during this period of transformation during the 18th and 19th centuries that the importance of the patent grew and official legislation was incorporated to govern the world of inventors.

The precursor to various patent systems was the "Statute of Monopolies," enacted in Great Britain in 1623, which recognized a need to balance the needs and ambitions of the inventor and the interests of the public. By the mid 1800s, the sheer volume of innovative activity that accompanied the Industrial Revolution and complex disputes over intellect property could no longer be addressed by the 200-year-old Statute of Monopolies. A more specific system, the patenting process, was created.

The Canadian approach to constructing a patent system began in earnest in the 19th century and was greatly influenced by the similar developments, taking place in the Unites States, and established practices in the United Kingdom, where Sir Richard Stafford Cripps made a significant contribution to the patent process as we know it today. However, it wasn’t by inventing something new himself that he found success. Rather, it was as a successful barrister practicing compensation and patent law. He was the creator of the "Cripps Question" which is still used today in determining the inventiveness of a patent claim. The question is as follows:

Was it obvious to any skilled chemist in the state of chemical knowledge existing at the date of the patent that he could manufacture valuable therapeutic agents by making the higher resorcinols by the use of the condensation and reduction processes described? If the answer is "No" the patent is valid, if "Yes" the patent is invalid.

In the 1820s, Canada invented a patent system that applied to Lower and Upper Canada. Residents were eligible, and patents were also granted for imported technology. By the 1830s, the Patent Act had been created in the Maritimes.

The first federal patent legislation was created in 1869, shortly after Confederation. It stipulated that the Canadian government could use patents, and from that point on patent applications were open to the public. A second Patent Act was legislated in 1872, and extended to the new provinces of Manitoba, British Columbia and Prince Edward Island. It also allowed for foreigners in Canada to obtain patents. Between 1900-1919, the Patent Act extended to Alberta and Saskatchewan and the Canadian Patent Office developed within the Department of Trade and Commerce. Shortly after, in the 1920s, a third and fourth federal Patent Acts came into being.

Patent legislation reform in Canada has always reflected changes in society, industry and the economy. One of the most significant aspects in the early 20th century focused on the secrecy of applications and the length of a patent term. Later, attention shifted to the context of international trade relations and agreements. Decades following the 1960s saw the introduction of compulsory licensing amendments. Today, globalization and agreements and links with organizations such as North American Free Trade Agreement (NAFTA) and the World Trade Organization (WTO) have resulted in further changes.

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