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ARTICLE · 29 NOVEMBER 2011

Business Method As Essential Element Of Valid Patent Claim: Amazon One-Click Decision, A Canadian Prosecution Perspective

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On November 24, 2011, the Canadian Federal Court of Appeal released a vital decision quashing the Commissioner of Patents’ stated "tradition" of excluding business methods from patentability.

CanadaIntellectual Property
Grant Tisdall
Grant Tisdall
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On November 24, 2011, the Canadian Federal Court of Appeal released a vital decision quashing the Commissioner of Patents' stated "tradition" of excluding business methods from patentability. In the appeal of Commissioner of Patents v. Amazon.com Inc., the Court kept the door open to the patentability of business method patents in Canada, but refrained from ruling on whether the "one-click" patent at issue was patentable. The Court sent the matter back to the Commissioner to expedite further examination of Amazon's patent application based on the Court's reasoning.

The Court confirmed there is no conclusive Canadian jurisprudence dictating that a business method cannot be patentable subject matter. The Court also ruled that identification of the actual invention must be grounded in a purposive construction of the patent claims, in accordance with Free World Trust and Whirlpool cases, and therefore the Commissioner's adoption of a separate "form" and

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