Canada Rejects Business Method Patents

"Canadian Patent Appeal Board Rules Against Business Method Patents," says a new post from Michael Geist; Lorien_the_first_one writes "Looks like the US courts could face some peer pressure," and supplies this excerpt: "[T]he panel delivered very strong language rejecting the mere possibility of business method patents under Canadian law. The panel noted that 'since patenting business methods would involve a radical departure from the traditional patent regime, and since the patentability of such methods is a highly contentious matter, clear and unequivocal legislation is required for business methods to be patentable.' ... In applying that analysis to the Amazon.com one-click patent, the panel concluded that 'concepts or rules for the more efficient conduct of online ordering, are methods of doing business. Even if these concepts or rules are novel, ingenious and useful, they are still unpatentable because they are business methods.'"

Comments

Patent power

[YayaY]

Patent and copyright law have gained tremendous power during the last hundred years. I feel like they now possess too much power compared to their usefulness to society.

Read about the history of patent

Read about the history of Copyright

Some background about Canadian patent law

[thirty-seven]

Patent Law in Canada falls under federal jurisdiction. However, patent law can be enforced in either Federal Court or in the provincial courts. It is up to patent holders to enforce their patents by suing infringers, and nowadays they usually choose to do this in the Federal Court.

The criteria for patents under Canadian law are:

• Novelty
• Utility
• Non-obviousness

Also, there are certain matters that cannot be patented, according to the Patent Act. These areas differ quite a bit from those things that can/cannot be patented in the US. For example, in the US software cannot be patented (although they could be copyrighted), in Canada software can be patented if it meets the usual requirements - if it has an immediate, real-world, practical and useful result. Medical treatments within the body also cannot be patented, although external diagnostic tests or devices can be.

Re:Some background about Canadian patent law

[Dachannien]

Somebody ought to call up IBM and Microsoft and warn them their lawyers are screwing up, since software algorithms ARE quite patentable here in the US.

The algorithms themselves are not patentable per se according to current US law. A variety of cases have established that mathematical algorithms are nonstatutory subject matter (though the explanation of why has differed from case to case). But from a practical standpoint, attorneys have a few ways to get patents on what is essentially software.

What has changed recently is the test applied to make a determination of whether a claim to a method is nonstatutory. Previously, case law commonly referred to as State Street indicated that if the claims were directed to an algorithm which produced "a useful, concrete and tangible result", then it was not merely a mathematical algorithm and was an actual patentable invention.

Current case law includes the fairly recent Bilski decision, which instead applies a test put forth by the USPTO in accordance with other case law: method claims are nonstatutory unless the method either is tied to a particular machine or performs an eligible transformation. The USPTO has gone through a few versions of the guidelines for applying these rejections to applications, but most computer-based method claims end up okay as long as the attorneys remembered to include in the specification that the method was performed with or by a computer.

Computer-based claims are frequently written in two other ways. One is by claiming a system of various units that perform functions. Generally, the units are software modules of some sort. In this case, if the claims don't also mention a computer, then the system is really just software per se. A case called In re Warmerdam discusses the direct claiming of computer programs (e.g., where the claim starts off, "1. A computer program which causes a computer to perform steps comprising..."), and even if they use the subterfuge of claiming a system, but the system is really all software, they get nailed on that.

They can also claim a computer program by embodying it on a tangible computer-readable medium (such as a CD-ROM, memory, etc.). What applicants usually run into problems with here is that they say that a signal (e.g., a carrier wave, a transmission line, etc.) could be a computer-readable medium, but there is case law against that as well (In re Nuijten). Interestingly, over in the 9th Circuit (Northern District of California, I think?), there's been a recent case that invalidated computer-readable medium claims as being directed to the computer-readable medium itself, which is anticipated by any computer-readable medium in the prior art.

Anyway, the take-home message is that you can't get a patent on software... unless you jump through all the hoops.

Re:Yay lobbyists

[thirty-seven]

clear and unequivocal legislation is required for business methods to be patentable

Since when has that stopped anyone? :(

The courts in Canada often defer to Parliamentary supremacy. In the Supreme Court case about the "oncomouse" (genetically-engineered mouse that Harvard College was trying to patent) the patent was rejected, but not because the court said that higher lifeforms could not be patentable, even though it seemed that that was what the court wanted to decide and that was what the government was arguing before the court (they wanted to patent rejected). Instead, the court rejected the patent on much more technical grounds, because the patent application claimed to patent the "manufacture" of the "composition of matter" of the mouse. The court did not reject the patent by saying that higher lifeforms were exempt from patents. The court explicitly said that for such a major matter, that if the government did not want such lifeforms to be patentable, then Parliament should change the patent legislation to explicitly state that such lifeforms were non-patentable.

Re:Yay lobbyists

[XaXXon]

It's not intended to stop anyone. This is the courts doing what they're supposed to do. They look at the laws, they look at what someone is trying to do and apply the law. They then say: "You don't like our decision, change the basis on which we made it."

Re:Canada: more sanity than greed.

[Anonymous Coward]

Unless you live in the better part of Canada (West Coast) then you should bring a pair of sunglasses and an air conditioner =P

Re:Not a win yet.

[RsG]

Once upon a time there was more of a meaningful difference. There still is a difference provincially.

On the federal level however, all that changed with the consolidation of the two major conservative parties into one Conservative Party. You now have the more traditional conservatives, the ones who fall somewhere between the conservative elements of the American Democrats and the libertarian types, paired up with the newer "conservatives" who are somewhat more akin to Republicans. Stephen Harper is undeniably one of the latter variety. He doesn't speak for all Canadian Conservatives (many of the former type dislike him), but technically he only needs to speak for the majority of the party to take and hold his post.

A similar phenomenon happened south of the border a long time ago. The Republicans are a conglomeration of several different brands of political conservatism, many of which clash. Under no circumstances should the fundies from the bible belt who want to push their politics upon everyone get stuck under the same banner as folk seeking a smaller, less intrusive government with greater fiduciary responsibility - those are opposing agendas. Thus are the faults of a two-party system.

This is precisely why there were two conservative parties in Canada, and it is a great loss that there is now only one. And as it is currently dominated by people who, in the United States, would fit in nicely with the GOP, I am not in the least bit convinced that your statement is true anymore.