Canadian Patent Office Rejects Software And Business Model Patents

from the one-click-to-reject dept

Mon, Jun 8th 2009 2:14pm — Mike Masnick

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.

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Filed Under: business method patents, canada, patents, software, software patents

27 Comments

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slacker525600 (profile), 8 Jun 2009 @ 3:03pm

this seems good and bad
I like the fact that they have acknowledged that the CPAB shouldnt be making this decision unilaterally, but I dont know if I trust the politicians to be making the decisions either. Lets see how the lobbyists write this upcoming legislation.
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Anonymous Coward, 8 Jun 2009 @ 3:34pm

Yes! my country isn't quite as fucked up as I feared it was becoming! now if we just add some reasonable things like provisions for independent invention, maybe I'll stop crying for the destruction of the patent system completely!

Tata guys, I'm going to get plastered this news is so good!
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Pjerky (profile), 8 Jun 2009 @ 4:58pm

I don't trust lawmakers
As much as I agree with the court ruling I have to say that I really don't trust nor expect politicians to make the right choice. They will do whatever they are told by those that give them the most money and/or gifts. It is nice to see that the courts still have some decency though. Lets hope enough politicians will have the same decency.
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dave, 8 Jun 2009 @ 6:41pm

Incorrect Headline
Just a question. But why do all the headlines lump Business Methods in with Software Patents? The article does not mention anything about Software Patents... or did I miss something?
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Anonymous Coward, 8 Jun 2009 @ 6:58pm

Re: Incorrect Headline
Because neither one of them should be allowed a patent ???
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Mike Masnick (profile), 8 Jun 2009 @ 7:35pm

Re: Incorrect Headline
Just a question. But why do all the headlines lump Business Methods in with Software Patents? The article does not mention anything about Software Patents... or did I miss something?

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.
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angry dude, 8 Jun 2009 @ 8:19pm

Re: Re: Incorrect Headline
"The two are generally considered to be effectively the same thing. Software is really just a description of a business method."

Only in little techdirt lemming-punk's world

Are you really that clueless or just trying to fool us ?
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angry dude, 8 Jun 2009 @ 8:44pm

"software patents"
Read this, my little clueless and patentless techdirt lemming-punks:

http://www.ipjur.com/01.php3
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Anonymous Coward, 9 Jun 2009 @ 1:36am

Re: "software patents"
Right, I can see now, software patents are good ... for an IP lawyer
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kaplanmyrth (profile), 9 Jun 2009 @ 7:01am

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.
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angry dude, 9 Jun 2009 @ 7:05am

Re: Incorrect Headline
"Just a question. But why do all the headlines lump Business Methods in with Software Patents? The article does not mention anything about Software Patents... or did I miss something?"

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
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angry dude, 9 Jun 2009 @ 7:12am

Re: Re: Re: Incorrect Headline
"We've seen that IP owners have still found ways to get software patents. "

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
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Andy Kaplan-Myrth (profile), 9 Jun 2009 @ 7:19am

Re: Re: Re: Re: Incorrect Headline
Wow, you really are angry. Back to the Institute, dude.
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angry dude, 9 Jun 2009 @ 7:38am

Re: Re: Re: Re: Re: Incorrect Headline
f*** you dude, I AM at the institute
it's called federal ******** administration
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Anonymous Coward, 9 Jun 2009 @ 2:14pm

Re: Re: Re: Re: Re: Re: Incorrect Headline
f*** you dude, I AM at the institute
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.
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staff1, 10 Jun 2009 @ 6:07am

4,359,631
"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..."

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.
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Gene Cavanaugh, 10 Jun 2009 @ 2:39pm

Canada rejects software and business model patents
Good article.
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.
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Anonymous Coward, 10 Jun 2009 @ 6:27pm

Re: Canada rejects software and business model patents
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,

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!
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Anonymous Coward, 11 Jun 2009 @ 9:42am

Re: Re: Re: Re: Incorrect Headline
""We've seen that IP owners have still found ways to get software patents. "

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.
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Mike Masnick (profile), 11 Jun 2009 @ 10:36am

Re: 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.

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.
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MikeIP, 11 Jun 2009 @ 2:38pm

Re: Canada rejects software and business model patents
China's patent laws strongly reflect the EU's patent laws, which allow software patents that enable a technical effect and are not software per se (there must be some hardware involved).
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MikeIP, 11 Jun 2009 @ 2:40pm

Re: Re: Incorrect Headline
The two are only the same thing when claimed the same way. And any patent attorney that does that doesn't deserve the work. Bilski hasn't made much difference since the decision came down, at least for those applications and patents that were drafted pretty strictly to the guidelines drawn by State Street.
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Anonymous Coward, 11 Jun 2009 @ 8:55pm

Re: 4,359,631
4,359,631 was for a "self-service terminal", in other words, a vending machine. It was NOT a purely software patent, you deceptive sack of s**t.
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Anonymous Coward, 11 Jun 2009 @ 9:09pm

Re: Re: 4,359,631
"It was NOT a purely software patent, you deceptive sack of s**t."

I don't think he said it was purely a software patent.
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Anonymous Coward, 12 Jun 2009 @ 12:48am

Re: Re: Re: 4,359,631
I don't think he said it was purely a software patent.

I didn't say he did either.

(See? I can play too!)
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adele pace, 25 Jun 2009 @ 4:08am

Agree with the comment that there is significant overlap but aren't the same thing.
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Anonymous Coward, 3 Mar 2011 @ 9:55pm

Fundamentally, software and business methods are both the same because business method patents actually rely on the validity of a software patent. All business method patents, by default, include a computing device because of this. Go ahead, look some up.

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.
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