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Canada

Revision as of 10:02, 15 October 2010 by Ciaran (talk | contribs) (External links: * [http://www.patentlyo.com/patent/2010/10/business-method-patenting-in-canada.html Business Method Patenting in Canada], 15 Oct 2010, '''Patently-O''' - ''about Amazon.com v. Can)


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.

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].

Re Motorola Inc. Patent Application No. 2,085,228 (1999)

Re Motorola Inc. Patent Application No. 2,047,731 (1999)

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

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. 4.0 4.1 4.2 Donald M. Cameron. Patents for computer-implemented inventions and business methods, p. 19
  5. 5.0 5.1 http://www.stikeman.com/SoftwareCopyright_Patent_Derenyi_07.pdf