Software patents under Canadian patent law

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Both computers and software are specifically mentioned in the Canadian Patent Law. The Court of Canada believes that the use of computers in an invention does not lend, or reduce patents. Therefore, inventions involving computers do not specify their patents; on the contrary, whether the invention using a computer may be patented alternately on whether the invention meets the general patentable requirements as would be applicable to any invention.

Video Software patents under Canadian patent law

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Substantive law

Computers, software or related terms do not appear anywhere in the Patent Law. Therefore, as with any other invention, patented, the invention using a computer must meet the general patentable requirements of any invention as found in the Act.

"Discovery" is defined in Section 2 of Patent as:

"[A] ny new and useful art, process, machine, manufacture or composition of matter, or new and useful enhancements in the art, process, machine, manufacture or composition of material".

So every discovery must be new and useful. The invention should also be unclear as specified in section 28.3. The invention should also be included in one of the five patented subject categories found in the definition of "invention" above.

The Patent Law has an additional restriction in section 27 (8) that "No patents are granted for scientific principles or abstract theorems." This requirement, while not directly related to the software, has been discovered by the courts to limit patenting of computer-generated inventions.

The above patenting requirements are general and applicable to each invention. The law of case and practice of the patent office determines how this general requirement applies to patent applications for computer-generated inventions.

Case law

Schlumberger Canada Ltd. v. Canada (Patent Commissioner)

In 1981, the Federal Court of Appeal considered the question of patents of invention involving software in the case of Schlumberger . In Schlumberger , the applicant attempted to patent a process for the measurement analysis of the borehole for oil and gas exploration. The application describes the process in which measurements are processed by the computer for mathematical analysis and displayed to human operators.

The Court held, in the most frequently quoted section of the decision, that the calculations involved in this invention would, if performed by a man, be "mathematical formulas and a series of pure mental operations". The Court also found that the mathematical formula falls within the prohibition of the Patent Law against patents for scientific principles or abstract theorems. The Court later found that "the fact that computers... are used to implement the invention does not change the nature of the invention." Therefore, the petition is rejected as unenforceable because it is not included in the definition of "invention" found in the Patent Law.

The handle at Schlumberger is that the use of the computer does not add to, or subtract from, the patent of the alleged discovery.

Amazon.com Inc. v. Canada (Patent Commissioner)

In 2011, the Federal Court of Appeal re-considered the question of the invention patents using the software in the case of Amazon.com . At Amazon.com , the applicant seeks a patent for a "one click" online purchase method that allows users to make online purchases without the requirement of re-entering billing and shipping information. The patent is rejected by the Patent Commissioner as non-patentable material.

In the Federal Court, the reason for the Patent Office to reject patents, and in particular the finding that the subject of the claim is non-patentable material, is found to be unfeasible and the patent redirected to the Commissioner for reexamination with the directive that the claim is a patentable subject.

The Commissioner appealed the decision to the Federal Court of Appeals. The Federal Court found that "the determination of the subject matter must be based on the construction of the purpose of the patent claim." Thus, Sharlow J.A., substantially agree with the reasons below. However, the court emptied the lower courts found that the claim was a patentable subject, instead finding that judges did not benefit from the necessary expert evidence to provide a "foundation of relevant art knowledge" to support the construction of the claim. The Court then instructed the Commissioner to re-examine the patent application in an accelerated manner including the construction of the claim.

In considering this case, the Court of Appeal discussed the previous case from Schlumberger, and stated that:

"It is arguable that the patent claims in the matter in this case may fail on the same grounds, depending on whether the construction aimed at the claims in the matter leads to the conclusion that Schlumberger is indistinguishable because the only Aspect inventive of the claimed invention is an algorithm - a mathematical formula - that is programmed into the computer to make it take the steps necessary to complete a one-click online purchase. On the other hand, it can also be argued that a purposive constructions of claims can lead to the conclusion that Schlumberger can be distinguished because the new one-click method of completing online purchases is not the whole of invention but only one of a number of important elements in the new combination.In my view, the purposive construction task of the claim in this case must be done again by Commissioner, with an open mind to the possibility that the method bisni s new can be an important element of a pat pat claims id. "

After re-examination, Amazon.com's patent issued by the Commissioner.

Maps Software patents under Canadian patent law

Canadian Patent Office Practice

On March 8, 2013, the Canadian Patent Office announces a change in patent examination practices based on a decision in the case of Amazon.com.

The Patent Office publishes new guidelines for the determination of lawful materials based on constructions aimed at guided claims at Amazon.com. Simultaneously, the latest guides on inspection practices for computer related discoveries were also released.

Practice checks that respect purposive constructions

On March 8, 2013, the Patent Office issued a practice notification guiding the examiners that, according to Amazon.com , "identification of the actual invention" is "to be based on a purposeful construction of a patent claim". The notice outlines a set of guidelines for the construction of claims under investigation, relying on Supreme Court decisions in cases related to Free World Trust and .

Practice checks of the invention implemented by computer

On March 8, 2013, the Patent Office released a revised policy practice notice on the "computer-implemented discovery" checks. Notice of practice to override the previous section of the Patent Office Practice Manual (MOPOP) relating to the "computer-implemented" invention, including sections relating to "computer claims checking." The notification of reverse exercises guides that "subject evaluation-the issue of claims for compliance with part 2 of the Patent Act should be made on the basis of an essential element as determined through purposive constructions."

In particular, the notice of practice states that "where computers are found to be an essential element of the interpreted claims, subjects that are claimed in general will be legislation."

src: techrights.org

See also

• Software patent
• Subject under Canadian patent law

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References

Source of the article : Wikipedia