Difference between revisions of "Canada"
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Software patents, according to [[patent lawyer]] Eugene Derényi, are widely available in Canada since a 1981 court decision "Schlumberger Canada Ltd. v. Commissioner of Patents".<ref name="stikeman">http://www.stikeman.com/SoftwareCopyright_Patent_Derenyi_07.pdf</ref> According to Donald M. Cameron, the Patent Office took "a noticeably "anti-computer patent" stance immediately after the Schlumberger decision". This changed in 1984 with a directive from the Commissioner of Patents<ref name="cameron19" />. | Software patents, according to [[patent lawyer]] Eugene Derényi, are widely available in Canada since a 1981 court decision "Schlumberger Canada Ltd. v. Commissioner of Patents".<ref name="stikeman">http://www.stikeman.com/SoftwareCopyright_Patent_Derenyi_07.pdf</ref> According to Donald M. Cameron, the Patent Office took "a noticeably "anti-computer patent" stance immediately after the Schlumberger decision". This changed in 1984 with a directive from the Commissioner of Patents<ref name="cameron19" />. | ||
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+ | This ruling was summarised in a later ruling by the Federal Court as "''the Federal Court of Appeal found that use of a computer did not make a mathematical formula patentable.''" (from [[Amazon v. Commissioner for Patents]]) | ||
=== Re [[Motorola]] Inc. Patent Application No. 2,085,228 (1999) === | === Re [[Motorola]] Inc. Patent Application No. 2,085,228 (1999) === |
Revision as of 18:46, 3 November 2010
Contents
Legislation
Canada's patent legislation is a federal law called the Patent Act, R.S.C. 1985, c. P-4. The most up-to-date version should always be available from the federal Justice Department's Website at this address:
The Web site of the Canadian Legal Information Institute (CanLII) allows to see recent revisions of the law, regulations adopted under the law, and even search legal cases with reference to this law:
Relative to software
Subsection 27(8) of the Patent Act reads: "No patent shall be granted for any mere scientific principle or abstract theorem."[1]
Software or computer programs are prohibited per se ("as such") in virtue of this subsection. However, this exclusion has been trivially circumvented by claiming patentability of "statutory subject matter" (any "invention" defined under section 2) to which software was integrated. "Computer-implemented inventions"[2] may be patented and have been patented.
Definition of "invention"
As quoted in Amazon v. Commissioner for Patents (2010, Canada), the Patent Act says:
2. In this Act, except as otherwise provided, [...]
[...]
“invention”
« invention »
“invention” means any new and useful art, process, machine, manufacture or composition of matter, or any new and useful improvement in any art, process, machine, manufacture or composition of matter;
International Agreements or Conventions
The following international Agreements or Conventions apply to Canada[3]:
- 1883 - The Paris Convention
- 1947 - General Agreement on Tariffs and Trade (GATT) [today World Trade Organization (WTO)]
- 1978 - Patent Co-operation Treaty (PCT)
- 1994 - North American Free Trade Agreement (NAFTA)
Case law
Schlumberger Canada Ltd. v. Canada (Commissioner of Patents) (1981)
The case was concerned with the patentability of "a process whereby the measurements obtained in the boreholes are recorded on magnetic tapes, transmitted to a computer programmed according to the mathematical formulae set out in the specifications and converted by the computer into useful information produced in human readable form[4]." The application for patent was rejected by the Commissioner of Patents. The Federal Court of Appeal upheld the decision of the Commissioner of Patents. On October 21, 1981, the Supreme Court refused leave to the appeal of the Federal Court of Appeal's decision[4].
Software patents, according to patent lawyer Eugene Derényi, are widely available in Canada since a 1981 court decision "Schlumberger Canada Ltd. v. Commissioner of Patents".[5] According to Donald M. Cameron, the Patent Office took "a noticeably "anti-computer patent" stance immediately after the Schlumberger decision". This changed in 1984 with a directive from the Commissioner of Patents[4].
This ruling was summarised in a later ruling by the Federal Court as "the Federal Court of Appeal found that use of a computer did not make a mathematical formula patentable." (from Amazon v. Commissioner for Patents)
Re Motorola Inc. Patent Application No. 2,085,228 (1999)
Re Motorola Inc. Patent Application No. 2,047,731 (1999)
Amazon's 1-click patent appeal (2010)
The Canadian patent office rejected Amazon's application for a patent on one-click shopping but a 2010 decision of the Canadian appeal court ruled that the patent office was wrong to reject it.
Patent office practice
Since 2005, the Canadian patent office's non-legally-binding Manual of Patent Office Practice talks of "computer-implemented inventions" and says "an act or series of acts performed by some physical agent upon some physical object and producing in such object some change either of character or condition" and "it must produce an essentially economic result in relation to trade, industry or commerce".[5]
External links
- http://www.opic.ic.gc.ca/eic/site/cipointernet-internetopic.nsf/eng/home - Canada's patent office
- Software Patents In Canada, Japan and Europe, section 3(d) talks of the 1981 Schlumberger case
- Software-Related Patents: Canada
- Cameron’s Canadian Patent and Trade Secrets Law
- Software copyright and software patents, by Eugene Derényi, Stikeman Elliott LLP
- Canadian Patent Appeal Board rejects business method patents, plus an article by Michael Geist, 2009
- Flora 2003 report on software patents in Canada
- AIPLA: About software and business method patents in Canada
- Canadian patent law, Wikipedia
- Business Method Patenting in Canada, 15 Oct 2010, Patently-O - about Amazon.com v. Canada (Canada Fed. Ct. 2010)
References
- ↑ The law is also available in French at: http://laws.justice.gc.ca/fra/P-4/index.html
- ↑ Manual of Patent Office Practice, c.16 revised February 18, 2005.
- ↑ Donald M. Cameron. Patents for computer-implemented inventions and business methods, p. 9
- ↑ 4.0 4.1 4.2 Donald M. Cameron. Patents for computer-implemented inventions and business methods, p. 19
- ↑ 5.0 5.1 http://www.stikeman.com/SoftwareCopyright_Patent_Derenyi_07.pdf