Business Methods are Patentable in Canada


On October 14, 2010, the Federal Court of Canada issued its decision in the case related to its “one-click” technology. The Federal Court overturned a previous decision by the Commissioner of Patents and stated that’s patent application constitutes statutory subject matter in accordance with the Patent Act.

This case will have important repercussions, especially with respect to the patentability of business methods in Canada. The Federal Court rejected the Commissioner’s position that business methods constituted non-statutory subject matter. The Commissioner’s initial opinion was based on her interpretation of Canadian and foreign case law. However, the Federal Court indicated that claims relating to business methods must be “assessed pursuant to the general categories in s. 2 of the Patent Act”, and that creating a business method exception, as proposed by the Commissioner, constituted a “radical departure” from the current regime. According to the Court, such a departure should warrant parliamentary intervention. It remains to be seen whether the Commissioner will appeal this decision to the Federal Court of Appeal.  
UPDATE: Readers should note that the Commissioner filed a Notice of Appeal to the Federal Court of Appeal on November 15, 2010, asking that the order be reversed and the Commissioner’s refusal to grant the patent be affirmed. Those interested in the patentability of business methods and software will follow these proceedings closely, although the decision of the Federal Court of Appeal is not expected in the coming year.

For more detailed analysis of this decision, we refer you to our 2010 Fall Newsletter.

The decision is available here.