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ARTICLE · 29 SEPTEMBER 2023

Federal Court Of Appeal Rejects Test For Software-Based Inventions In Canada

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Under the prevailing Canadian jurisprudence, patent claims are to be construed in view of the specification as a whole, or "purposively" construed...

CanadaIntellectual Property
Steve Hundal, B.Eng.
Steve Hundal, B.Eng.
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Under the prevailing Canadian jurisprudence, patent claims are to be construed in view of the specification as a whole, or "purposively" construed, to give meaning to the words in the claims and determine those claim elements that are essential (non-essential elements being those elements that, on a purposive construction, are clearly not intended to be essential, or could be substituted or omitted without affecting the working of the invention). (Free World Trust v. Électro Santé Inc., 2000 SCC 66) ["Free World Trust"]

One purpose of this analysis is to identify those claim elements that must be present to establish infringement; i.e., there is no infringement if an essential element is different or omitted in an allegedly infringing device. The case law has also established as a fundamental rule of claims construction that claims receive one and the same interpretation for all purposes, including infringement and validity. (Whirlpool Corp. v. Camco Inc., 2000

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