Workspace for Canada 1-click appeal
This entry is for brainstorming.
These are ideas for a specific purpose. This is not an informational entry and will never turn into one.
This page is for gathering info which will be useful for anyone who wishes to prepare a letter to Canada's Federal Court of Appeals calling on it to reject Amazon's 1-click shopping patent.
Contents
Background reading
(See also, less important, the articles listed further down)
Official documents
- Federal Court's ruling, 14 Oct 2010 (said 1-click could be patentable)
- Notice of appeal, 15 Nov 2010
- ...
Articles on ESP Wiki
- Canada - legislation and case law
- Canadian patent courts and appeals
- Examples of good amicus briefs
How to participate
Can you help? We have no information yet. A possible starting point is to look at previous rulings to see if they mention amicus briefs or other submissions from third-parties.
Which arguments are relevant?
The court will hear legal arguments and socio-economic arguments.
Legal arguments: we need to read the existing rulings. See Canada#Case_law
Socio-economic arguments: go fish: Why abolish software patents
Impossibility to judge new-ness
Patent offices use their vast libraries as a source to verify what is new. They have not been collecting this info so they can't know if an idea is new and others would not have submitted the info due to the price of a patent vs the assumption that the idea wasn't patentable.
Or, this could be attributed to the fact that only a small portion of software innovations are submitted to the patent office. Judging novelty in software becomes impossible, just like judging novelty in music. Similar logic was used in a concurring opinion in the USA in the case In re Alappat:
Because the patent law cannot examine music for “nonobviousness,” the Patent and Trademark Office could not make a showing of obviousness under Section 103.
Are there arguments particularly important for Canada?
For example, are there particular industries which are important to Canada?
Have there been problems in the past which are similar to software patents, to SMEs, to freedom of operation for businesses?
What precedents guide this court?
- Half of the necessary info is in the October judgement
The only higher court in Canada is the Supreme Court. The Federal Court of Appeal will have to follow the Supreme Court's rulings.
Initial notes:
- The ruling of the Federal Court on 14 Oct 2010 did not say that Amazon's idea was patentable, it only said that the Commissioner of Patents had failed to make the case against Amazon's patent.
What treaties bind Canada?
Canada is a signatory of TRIPS. There was one mention of TRIPS in the Federal Court's decision (Oct 2010) but it said nothing of substance:
The Commissioner’s Reasons refer to the “technological” nature of all five categories of invention, the requirement in the Patent Rules that a description refer to a “technical problem” and the language in the Agreement on Trade Related aspects of Intellectual Property Rights (TRIPS).
External links
Articles
- It’s business as usual after Amazon.com—for now, 26 Nov 2010, Lawyers Weekly
- Amazon.com ‘One Click’ case to be appealed, 16 Nov 2010, Financial Post
