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(in French)
(External links: * [http://www.slaw.ca/2013/05/15/patentable-subject-matter-new-notices-from-canadian-patent-office-anticipated-issues-for-the-court/ Patentable Subject Matter – New Notices From C)
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{{Infobox|country-region-todo}}
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==Legislation==
 
==Legislation==
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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"<ref>Manual of Patent Office Practice, c.16 revised February 18, 2005.</ref> may be patented and have been patented.
 
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"<ref>Manual of Patent Office Practice, c.16 revised February 18, 2005.</ref> may be patented and have been patented.
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===Definition of "invention"===
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As quoted in [[Amazon v. Commissioner for Patents (2010, Canada)]], the Patent Act says:
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<blockquote>
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2. In this Act, except as otherwise provided, [...]<br />
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[...]<br />
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“invention”<br />
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« invention »<br />
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<br />
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“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;
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</blockquote>
  
 
== International Agreements or Conventions ==
 
== International Agreements or Conventions ==
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==Case law==
 
==Case law==
  
=== Schlumberger Canada Ltd. v. Canada (Commissioner of Patents) (1981) ===
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{{also|Amazon ruling by Canadian Federal Court on 14 October 2010}}
 
 
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<ref name="cameron19">Donald M. Cameron. ''Patents for computer-implemented inventions and business methods'', p. 19</ref>." 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<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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==Patent office decisions==
  
=== Re Motorola Inc. Patent Application No. 2,085,228 (1999) ===
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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''".<ref name="stikeman">http://www.stikeman.com/SoftwareCopyright_Patent_Derenyi_07.pdf</ref>
  
=== Re Motorola Inc. Patent Application No. 2,047,731 (1999) ===
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{{also|Canadian patent courts and appeals}}
  
==Patent office practice==
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==Related pages on {{SITENAME}}==
  
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''".<ref name="stikeman" />
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* [[Canadian patent courts and appeals]]
  
 
==External links==
 
==External links==
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* [http://www.jurisdiction.com/spcanada.htm Software-Related Patents: Canada]
 
* [http://www.jurisdiction.com/spcanada.htm Software-Related Patents: Canada]
 
* [http://www.jurisdiction.com/campat.htm Cameron’s Canadian Patent and Trade Secrets Law]
 
* [http://www.jurisdiction.com/campat.htm Cameron’s Canadian Patent and Trade Secrets Law]
* [http://www.stikeman.com/SoftwareCopyright_Patent_Derenyi_07.pdf Software copyright and software patents], by Eugene Derényi, Stikeman Elliott LLP
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* [http://www.stikeman.com/SoftwareCopyright_Patent_Derenyi_07.pdf Software copyright and software patents], by '''Eugene Derényi''', Stikeman Elliott LLP
* 2009: [http://www.p2pnet.net/story/22381 Canadian Patent Appeal Board rejects business method patents], plus an [http://www.michaelgeist.ca/content/view/4034/135/ article by Michael Geist]
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* [http://www.p2pnet.net/story/22381 Canadian Patent Appeal Board rejects business method patents], plus an [http://www.michaelgeist.ca/content/view/4034/135/ article by Michael Geist], 2009
 
* [http://www.flora.ca/patent2003/ Flora 2003 report on software patents in Canada]
 
* [http://www.flora.ca/patent2003/ Flora 2003 report on software patents in Canada]
 
* [[AIPLA]]: [http://www.aipla.org/html/Patent-Handbook/countries/canada/CAsoftware.html About software and business method patents in Canada]
 
* [[AIPLA]]: [http://www.aipla.org/html/Patent-Handbook/countries/canada/CAsoftware.html About software and business method patents in Canada]
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* [http://en.wikipedia.org/wiki/Canadian_patent_law Canadian patent law], '''Wikipedia'''
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* [http://iposgoode.ca/wp-content/uploads/2008/10/contextualizing-the-software-patent-debate-in-canada-conrad-seaman.doc Canada's software patent problem]
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* [http://cestepatent.wordpress.com/ C'est é-p@tent! - A bilingual blog of interest to patent practitioners in Quebec and Canada]
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* [http://www.slaw.ca/2013/05/15/patentable-subject-matter-new-notices-from-canadian-patent-office-anticipated-issues-for-the-court/ Patentable Subject Matter – New Notices From Canadian Patent Office, Anticipated Issues for the Court?], 15 May 2013, '''slaw.ca'''
  
 
==References==
 
==References==
<references />
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{{reflist}}
  
  
{{page footer}}
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{{footer}}
 
[[Category:Countries and regions]]
 
[[Category:Countries and regions]]
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[[Category:Canada]]

Revision as of 06:37, 16 May 2013


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

See also: Amazon ruling by Canadian Federal Court on 14 October 2010

Patent office decisions

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".[4]

See also: Canadian patent courts and appeals

Related pages on ESP Wiki

External links

References

  1. The law is also available in French at: http://laws.justice.gc.ca/fra/P-4/index.html
  2. Manual of Patent Office Practice, c.16 revised February 18, 2005.
  3. Donald M. Cameron. Patents for computer-implemented inventions and business methods, p. 9
  4. http://www.stikeman.com/SoftwareCopyright_Patent_Derenyi_07.pdf