ARTICLE · 21 MAY 2024

Leave Refused: Supreme Court Will Not Hear Benjamin Moore Case On Software Patents

Brion Raffoul

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A few months ago, the Intellectual Property Institute of Canada (IPIC) filed an application for leave to appeal at the Supreme Court of Canada (SCC) in the case of Benjamin Moore & Co. v. Attorney General of Canada...

CanadaIntellectual Property

A few months ago, the Intellectual Property Institute of Canada (IPIC) filed an application for leave to appeal at the Supreme Court of Canada (SCC) in the case of Benjamin Moore & Co. v. Attorney General of Canada ("Benjamin Moore").

As we've previously discussed, a clear definition of patentable subject matter for computer-implemented inventions (software patents) continues to elude both the Canadian Intellectual Property Office and the federal courts. The prolonged uncertainty has prompted IPIC, an intervener in Benjamin Moore at lower levels, to pursue more explicit directions from the SCC.

The SCC's decision for leave to appeal was refused on Thursday.

This is an unfortunate outcome that leaves many open questions. We were hoping the SCC would provide clarity on the test for patentable subject matter. Moreover, this is a missed opportunity for more case law on patentable subject matter in Canada.

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