Software and business method patents tend to be particularly complex, and are often difficult to patent in Canada.
The law in Canada in regards to software and business method patents has only recently stabilized, with the November 2011 decision of the Federal Court of Appeal in the case of Amazon’s one-click patent application (Canada (Attorney General) v Amazon.com, Inc., 2011 FCA 328). Amazon’s application was for a “Method and system for placing a purchase order via a communication network”, which allowed customers shopping online to make purchases with one-click buying.
Before then, there was doubt as to whether software and business method patents were even suitable patentable “subject matter”.
In the Amazon, case the Federal Court of Appeal held that the Patent Office should review each of the claims, using a “purposive construction” and keep an open mind that a novel business method may be an essential element of a valid patent claim. Amazon did get their patent issued in January 2012 (CA 2,246,933), so some software or business process patents are granted. However, each case is very much dependent on the wording of the patent claims. A claim may still fail if the only novel aspect is the business method and the business method was interpreted as a “mere scientific principle or abstract theorem”, which cannot be proper “subject matter”.
In short, the Canadian Patent Office will not allow claims directed to software or a business method (process) per se. The Office will require that the claims have some reference to a tangible (physical) item. Therefore, software or business method protection may be available for software-related inventions – if the claims are directed to computer-readable media or to computer-implemented methods and systems incorporating proper hardware elements and those hardware elements are held to be “essential elements”.
Also note that software and business method patents, like all applications, must meet the rigorous standards of novelty, non-obviousness, and usefulness required for a patent in Canada. With the vast amounts of software now out there, it’s becoming more difficult for newer inventions to meet these traditional patentability hurdles.
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