Thursday, October 14, 2010

Patents claiming a method of doing business are patentable in Canada

In March 2009, the Commissioner for Patents had rejected Amazon's patent application claiming a "1-click" method of internet shopping, holding that business methods such as these are categorically unpatentable.  The Commissioner appeared to adopt a public policy role, and relied heavily on foreign legislation and foreign court decisions in order to support its decision.  This decision created uncertainty in the Canadian patent regime because after this decision, the Canadian Patent Office considered business methods no longer patentable but had failed to substantiate it with clear Canadian legislative or judicial authority. 

Today, the Federal Court in Amazon v. Canada, 2010 FC 1011 brought back much clarity to the world of Canadian patents.  The Court held that a method of doing business (a "business method") can be patentable subject matter, and that there is no categorical exclusion for business method patents.   The Court rejected the Commissioner's reliance on foreign legislation and foreign court decisions, and reminded the Commissioner that it is bound by the Canadian patent regime and its interpretation by the Courts. The Commissioner has no discretion to refuse a patent on the basis of public policy and must always substantiate its decision with express provisions in the Patent Act.  International jurisprudence, and certainly the policies advocated therein, are not determinative, but at most a potential guide when applied correctly and mindfully. 

Inventors and intellectual property lawyers are glad that the patentability of business methods are affirmed.  I will keep you updated if 2010 FC 1011 is appealed to a higher court.

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