In a strongly-worded and highly anticipated decision, the Federal Court has redefined patentable subject matter in Canada. In Inc. v. Canada (Commissioner of Patents),1 appealed the Commissioner’s rejection of its patent application for a “single click” online purchasing scheme. The Commissioner found the claimed invention to be, in substance, directed to unpatentable subject matter. The Commissioner held that “business methods” have been “traditionally” excluded from patentability

The Court declared that the Commissioner’s analysis amounted to prohibited policy-making and relied almost entirely on legal principles improperly imported from foreign jurisdictions. The Court further held that the legal test articulated by the Commissioner has no basis in Canadian law. A “form and substance” analysis of a claim is improper and contrary to established Canadian jurisprudence. There is no automatic exclusion of business methods. And, there is no requirement that the inventive contribution be technical or technological in nature.

Generally stated, to be a patentable method, a claim must be assessed as a whole and construed purposively to determine whether it: (i) is not a disembodied idea, but is, instead, a method of practical application; (ii) is new and inventive; and, (iii) has a commercially useful result.

This decision has important implications for computer-implemented and business method inventions, which must now be assessed against the same standards as more conventional industrial inventions.

In other technological sectors, such as the life sciences, patent applicants pursuing protection to bioinformatics methods, dosage regimes, and diagnostic methodologies may benefit from this decision.