Canadian Patent Office Rejects Software And Business Model Patents
from the one-click-to-reject dept
While the US Supreme Court will soon be considering the question of software and business method patents (and the US Patent Office is still reviewing whether or not Amazon's "one-click patent" is valid), up North, the Canadian Patent Appeal Board (CPAB) appears to have resolved both issues by rejecting all software and business method patents in explaining why it's rejecting Amazon's one-click patent in Canada. Basically, the CPAB found that since software and business method patents haven't been allowed in the past, even if they're not explicitly forbidden by the patent law, it's such a big change that it should require legal action to allow them:"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."This actually makes a fair amount of sense. In the US, once the State Street case was decided, there was suddenly a mad rush to patent business methods and software, and part of the problem was that because so many people had considered the two unpatentable before, there wasn't the same set of prior art in the patent system that would have eliminated the worst abuses.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: business method patents, canada, patents, software, software patents
Reader Comments
Subscribe: RSS
View by: Time | Thread
this seems good and bad
[ link to this | view in chronology ]
Tata guys, I'm going to get plastered this news is so good!
[ link to this | view in chronology ]
I don't trust lawmakers
[ link to this | view in chronology ]
Incorrect Headline
[ link to this | view in chronology ]
Re: Incorrect Headline
[ link to this | view in chronology ]
Re: Incorrect Headline
The two are generally considered to be effectively the same thing. Software is really just a description of a business method. That's why this particular case, which was about Amazon's "1-click" patent -- which is both software and a business method.
[ link to this | view in chronology ]
Re: Re: Incorrect Headline
Only in little techdirt lemming-punk's world
Are you really that clueless or just trying to fool us ?
[ link to this | view in chronology ]
Re: Re: Incorrect Headline
Business Method patents and Software patents definitely have a significant overlap, but they are not the same thing, at least in Canada, and this decision of the Patent Appeal Board does not have any significant bearing on software patents.
The leading case on software patents in Canada is Schlumberger Canada Ltd. v. Commissioner of Patents, (1981) 56 C.P.R. (2d) 204 (FCA), in which the Federal Court of Appeal considered a patent on a process of analyzing mining information using a computer. Mathematical formulae are not patentable, and the court found that using a computer to perform the calculation is not enough to make the process patentable. The Supreme Court declined to hear the appeal, so the law in Canada is clear that software is not patentable. In practice, however, lots of patents are filed in Canada that are effectively software patents, and it is an area of some controversy.
So the leading case regarding software patents in Canada is clearly not about business methods. They are often related, but should not be confused.
Note that this decision of the Canadian Patent Appeal Board in the Amazon.com case is a lower level decision than the Federal Court of Appeal decision ruling against software patents in Schlumberger. We've seen that IP owners have still found ways to get software patents. We should not be too confident that this decision will stop business method patents either.
BTW, having read Anonymous Coward's stab at IP lawyers at comment #9, I should note that I am an IP lawyer. But at least I'm not an anonymous coward.
[ link to this | view in chronology ]
Re: Re: Re: Incorrect Headline
Punky
if you really are an IP lawyer you should know that there is no such thing as "software patent"
Software per se is NOT patentable
Process or method IS patentable, and has always been
(the very first US patent was issued to Samuel Hopkins for the process of making potash and today all industrial processes are controleld by computer)
An F grade for you
Back to school, dude
[ link to this | view in chronology ]
Re: Re: Re: Re: Incorrect Headline
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Incorrect Headline
it's called federal ******** administration
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Incorrect Headline
it's called federal ******** administration
Hmm, I didn't even know there was a Federal Dumb-ass Administration. Oh well, I guess it's better to put you in some make-work program than the welfare you would otherwise be on.
[ link to this | view in chronology ]
Re: Re: Re: Re: Incorrect Headline
Punky
if you really are an IP lawyer you should know that there is no such thing as "software patent"
Software per se is NOT patentable"
Congratulations, you completely missed the point. The point is, while they may not be legally labeled software patents, they overlap so much with software that they are effectively software patents (or at least close). Just because you take something and label it something else doesn't change what it really is.
[ link to this | view in chronology ]
Re: Re: Incorrect Headline
[ link to this | view in chronology ]
Re: Incorrect Headline
Yeah, you missed something
Mikey is a PR hack for corporate dudes
He is misinforming you about patents on purporse - to make his corporate masters happy AND get paid
[ link to this | view in chronology ]
"software patents"
http://www.ipjur.com/01.php3
[ link to this | view in chronology ]
Re: "software patents"
[ link to this | view in chronology ]
4,359,631
Check out US patent 4,359,631. As you will see patents covering computer systems/software have been around long before State Street and in fact date to at least the 70's. It just depends on how you claim them. Your premise is wrong.
[ link to this | view in chronology ]
Re: 4,359,631
No, the premise is exactly correct. I said that "so many people had considered the two unpatentable before..." I didn't say that none existed -- but I did (CORRECTLY) state that many did not believe such things were patentable and avoided even trying.
That changed after State STreet.
My premise was correct. Your comment is incorrect.
[ link to this | view in chronology ]
Re: 4,359,631
[ link to this | view in chronology ]
Re: Re: 4,359,631
I don't think he said it was purely a software patent.
[ link to this | view in chronology ]
Re: Re: Re: 4,359,631
I didn't say he did either.
(See? I can play too!)
[ link to this | view in chronology ]
Canada rejects software and business model patents
However, I think the abuse of the patent system goes deeper than that (even though I am a "patent" attorney).
I think we need to:
1. Get campaign finance reform, so that the patent law (like many other areas) will be less about getting the wealthy to donate and more about what is good for the nation,
2. COMPLETELY rewrite the patent law - the law in PR China (even though the Chinese courts tend to ignore it) would be a great model - just enforce it!!!
3. But, while we wait, you are right; fix this, anyway, as the Canadians have done.
[ link to this | view in chronology ]
Re: Canada rejects software and business model patents
Or maybe the US needs to become a democracy. If the wealthy then want to try to bribe all of us, then go for it!
Democracy in the US, NOW!
[ link to this | view in chronology ]
Re: Canada rejects software and business model patents
[ link to this | view in chronology ]
[ link to this | view in chronology ]
And I'm no an anonymous coward... I'm just lazy. n.n
Legally, they are the same thing because if software patents are ever invalidated or changed it has the potential and is even likely to affect business method patents.
Fundamentally, it can be argued with some validity, that it is purely a software patent, and that all business method patents, due to the origin of their current supposed patent-ability are in fact software patents.
In fact, very recently, a large number of business method patents were invalidated for not mentioning a computer (possibly all that don't mention a computer). At least it was standard legal practice in light of the legally muddy landscape.
[ link to this | view in chronology ]