Does My Startup Need a Patent to Protect Its Product?

No, a patent isn’t automatically required, but it’s the only way to stop copying

Usually no, not as a legal requirement, but it depends on what you’re protecting and whether it can be copied. Patents are administered federally across Canada under the Patent Act, so there is no separate Ontario or Alberta patent regime to navigate. Under section 42 of the Patent Act, a granted patent gives its owner the exclusive right to make, construct, use, and sell the invention, and to stop anyone else from doing so without permission. That exclusivity is the entire point of filing: CIPO confirms that a business can generate revenue by manufacturing and selling an invention without ever patenting it, but a patent is what lets the owner take legal action against someone who copies it.

So the real question isn’t “does the law require a patent” (it doesn’t), but “does my product need that specific kind of protection.” That turns on a few conditions.

The conditions that change the answer

Can the invention be reverse-engineered or figured out from the product itself? If a competitor can take your product apart, run tests on it, or otherwise work out how it functions just by observing what you sell, keeping it secret won’t protect it, only a patent (or a competitor’s own inability to replicate it) will. If the invention’s workings are not discoverable from the product in the market, trade secret protection may be enough.

Have you already disclosed it publicly? CIPO is explicit that to be patentable, an invention must be new to the world and not already known to the public. If you’ve demoed the product at a conference, published details, or sold it without filing first, that disclosure can undermine the novelty the Patent Act requires. This cuts both ways: it’s a reason to file early if you intend to patent, and it’s a reason trade secret protection (never disclosing at all) is sometimes the more durable choice for inventions that are hard to reverse-engineer.

Is your invention even eligible for a patent? Not everything qualifies. CIPO notes that certain categories, for example animals or methods of performing surgery, are excluded from patent protection regardless of how novel they are. If your product falls into an excluded category, patenting isn’t an option no matter how strong the business case, and confidentiality-based protection is the remaining route.

Can you afford the time and cost of the process? CIPO acknowledges that because securing a patent can be costly and time-consuming, many businesses and inventors choose to rely on trade secrets instead. Patent protection, once granted, lasts up to 20 years, which is a long runway, but getting there involves examination costs and delay that a trade secret strategy avoids entirely.

What this means in practice, and where the cost differs

If your invention is easily copied once it’s on the market and you can meet the novelty bar, a patent is the only tool that lets you legally stop a competitor from making, using, or selling the same thing. If it’s hard to copy just by observing the product, or if it falls outside what’s patentable, trade secret protection (simply keeping the details confidential through internal controls and confidentiality agreements) can do the same commercial job at lower cost.

Cost is not uniform across applicants. CIPO charges reduced “small entity” fees to qualifying businesses with fewer than 100 employees and to universities, compared with the standard fee schedule for larger applicants, which changes the cost calculus for an early-stage startup versus an established company filing the same type of application.

Where to go from here

Because patentability turns on technical questions (whether the invention is genuinely novel, whether it falls into an excluded category, whether a competitor could reverse-engineer it from the finished product), these are not judgment calls to make alone from general information. The practical next steps are: check whether your invention or any part of it has already been publicly disclosed, identify whether it falls into a category CIPO excludes from patent protection, and if you’re leaning toward filing, do so before further public disclosure given the novelty requirement. CIPO’s own guidance and a patent agent are the two resources equipped to assess a specific invention against these conditions.