Differences Between Patenting in Canada and the U.S.

Contrary to what you may think, there aren’t many differences between the Canadian application process and the US provisional application process as far as speed, complexity, flexibility, and costs go. 

However, there are some important variations.

Let’s take a look.

The application Process

US Application

  1. File a provisional patent application (optional)

  2. File a utility (full) patent application that refers to the provisional application or, convert the provisional application into a non-provisional application. 

  3. Or - file a utility patent application without first filing a provisional.

  4. Prosecute the utility patent application.

The US is “first-to-file”, regardless of who invented first - don’t wait to file!

Canadian Application

  1. File a Canadian patent application.

  2. Typically, one would pursue the prosecution of the original patent application. One could optionally file a second Canadian patent application claiming (internal) priority over the previously, regularly filed application. 

Canada uses the “first-to-file” system as well.

Minimum requirements for a filing date

Canadian Application

The application must include:

  • An indication that you want to be granted a patent

  • A document in English or French that describes your invention

  • The applicant’s name

  • The applicant’s (or agent’s) address

  • A filing fee

US Application

The application must include:

  • A written description of the invention

  • Cover sheet with the title of the application, name(s) and city/country or state of the inventor(s)

  • Filing fee

  • The cover sheet and filing fee are not needed, but there is an extra charge if these are given at a later date

 

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Can THe application become a patent?

Canadian Application

  • Yes

US Application

  • Provisional — no, unless it is changed into a utility application

  • Utility — yes

Is the content of the application made public?

Canadian Application

  • Not if the application is withdrawn within 18 months of its filing.

  • Otherwise, yes, after 18 months.

US Application

  • Not necessarily. If the provisional application is converted into a utility application, then it may be published. 

  • The utility application may be filed with a request for non-publication, in which case it is published only upon grant.

Length of patent protection

Canadian Application

  • When pursuing the prosecution of the original application, 20 years from the filing date of the original application. 

US Application

  • Up to 20 years from filing the utility application.

  • The provisional application filing date is not relevant.

Here is an infographic for those who need a TL;DR version of the differences between the two.

What To Know About the Patent Process In The U.S. Versus Canada

What To Know About the Patent Process In The U.S. Versus Canada

I hope this helps to demystify the U.S and Canadian patent application processes.

Nonetheless, it’s always best to seek professional counsel and advice to ensure broader claims, fewer rejections, and faster approvals — saving you time, headaches, and unnecessary expenses. 

Drop me a line if you have any questions, I’m always happy to help!

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