Protect your innovation

You or your business may have come up with a valuable innovation. An invention is usually protected by a patent. You may also protect a particular visual feature as an industrial design. Learn how to identify the type of IP you have and how to protect it.

Invented something new?

An invention is usually protected by a patent. You may also protect a particular visual feature of a new product as an industrial design.

First stage: Is your invention a patent or an industrial design?





Free search tools





Third stage: Define your protection strategy

First, you must understand that your innovation is NOT automatically protected by law, so you need to make sure that you keep your innovation's details secret. Then you need to define your strategy to protect it.

You must make a strategic decision about whether it is best to manage risk by maintaining a trade secret indefinitely or choosing to file for formal protection, which has time limits. There are a number of issues to consider.

Maintain your innovation as a trade secret

The definition of a trade secret can vary from one jurisdiction to another. In general, we call something a trade secret if it is information that provides a business advantage over a competitor and if its owners have made reasonable efforts to keep it secret.

Trade secrets can be formulas, practices, designs, patterns, data compilations, devices or instruments, processes, etc.

Sometimes a trade secret can be protected by contracts via certain legal concepts and statutes, such as confidentiality agreements (see below).

The World Intellectual Property Organization (WIPO) explains how trade secrets are protected: Trade secrets are protected without registration, that is, without any formal procedures. Consequently, a trade secret can be protected for an unlimited period of time. Some general standards exist:

  • the information must be secret (i.e. it is not generally known or readily accessible in circles that normally deal with the kind of information in question)
  • it must have commercial value because it is a secret
  • it must have been subject to reasonable steps by the rightful holder of the information to keep it secret (e.g., through confidentiality agreements)

Confidentiality agreements help protect trade secrets

A confidentiality agreement, also known as a non-disclosure agreement, is a contract in writing in which parties agree not to disclose the secret information they share, or use the information in any unauthorized way.

Inventors often expect anyone who has been or will be in contact with secret information (e.g., employees, suppliers, partners, investors, etc.) to sign a confidentiality agreement. Such an agreement will largely reduce the risk that the information becomes public. This is important because if the information does become public, it is possible that it could no longer be protected under law.

Trade secrets have limitations

It can be a challenge to maintain secrecy for a long time or when a lot of people know about a secret. The legal system cannot protect your trade secret from misuse.

You must use appropriate safeguards to protect your trade secret. Make sure your employees, customers, vendors and visitors are fully aware that they are forbidden to disclose or in any other way misuse your trade secrets. Make sure that these people sign confidentiality agreements where possible.

Proving that someone has broken a confidentiality agreement is complex and hard to do under common law or civil right. Legal action can be far more costly than applying for formal protection such as a patent or industrial design registration.

Even if you do keep an invention secret, someone could independently create the same invention and claim to be the rightful owner. This can happen if someone uncovers your invention through independent research, by reverse engineering your invention or because they heard about your invention from another person.

If this happens, your invention will be considered owned by someone else. Reversing this in court to annul it can be difficult, lengthy and expensive.

Comparing the trade secret to formal protection (a patent or industrial design)

Here is a comparison of the trade secret versus the patent or industrial design. It will help you decide which path you should take with your innovation.

Risk level for each path

Establishing your innovation as a trade secret is riskier than your other option, which is to seek formal protection using a patent or industrial design. This is because:

  • your trade secret has little protection if someone else files a patent or industrial design for the same innovation
  • you cannot sue if someone infringes on your innovation
  • the burden of proof is on you to show that you are the inventor

When you file for a patent or industrial design (formal protection) your innovation is less at risk because:

  • you have proof of ownership
  • your position is defendable in court

At the same time, your invention or design is easy for someone to copy because you have to disclose it publicly when you file for formal protection.

Costs associated with taking each path

A trade secret does not involve a registration process, which means there are no registration costs.

A patent can cost thousands of dollars to file and maintain. The top end of the cost range for patents includes the cost of paying patent agents, not the Canadian Intellectual Property Office. The cost can vary from case to case and varies from one patent agent to another. Registration of an industrial design usually costs less than $500.

Benefits of each path

Trade secret

When your innovation is protected by a trade secret, you can take measures such as non-disclosure agreements to help protect your innovation from being copied or exploited. One great benefit is that you never have to disclose the details of your innovation. Also, unlike a patent or the registration of an industrial design, a trade secret never expires. It is a secret as long as the secret can be kept.

Patent or industrial design registration

When you are granted a patent or have registered an industrial design, you own an asset like a deed to a physical property such as a house. It can become very valuable and can be sold, licensed or used to negotiate funding, venture capital or other forms of financing.

When you have exclusive rights to an innovation, you have an effective way to stop others from making, using, selling or importing your product or process. You can even use exclusive rights to stop someone who might later independently invent your patented invention. In many cases, a patent or industrial design registration is the only way to ensure exclusivity—and hence a competitive edge—in the marketplace.

Patent protection extends for up to 20 years from the date you file your application; an industrial design can be protected for up to 15 years.

When is one or the other method best?

Establishing an innovation as a trade secret makes the most sense when an innovation is at the research and development stage. It also makes sense for innovations that could later be filed for protection by patent or industrial design registration.

A patent or industrial design registration makes the most sense for innovations and new designs.

Maximize the value of your innovation

Take the right steps to protect and exploit your innovation as much as possible. Like physical assets, these intellectual property rights must be attained, maintained, accounted for, valued, monitored closely and properly managed in order to realize their full value.

Establish your ownership

Getting legal rights to your innovation by way of a patent and/or industrial design registration gives you proof of ownership. This is crucial to gaining the most commercial value.

Attract funding

Venture capital, angel investors and other financing organizations may want to fund your innovation, especially if you can prove you own it. Since patents and registered industrial designs are recognized as assets, you may even be able to use them as collateral for a bank loan.

Licence your invention

Licensing to other parties can be a vital revenue stream when you enter new markets across Canada and in other countries. For start-ups, licensing is typically the fastest way to generate cash flow.

Get professional advice

Registered agents can give you advice about developing an effective strategy on how to maintain secrecy, create confidentiality agreements or on when and how to apply for formal protection. Most patent applications are filed through these agents.

Other types of intellectual property

Protect your brand

Protect your creation