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ARTICLE · 03 JANUARY 2012

Patentable Subject Matter – Clarity Or Prolonged Confusion?

Borden Ladner Gervais LLP
Borden Ladner Gervais LLP
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It’s back to the "check-out" counter for Amazon.com’s (Amazon) "one-click" patent application.

CanadaIntellectual Property
Mukundan Chakrapani
Mukundan Chakrapani
Steven Kennedy
Steven Kennedy
Anne Kinsman
Anne Kinsman
Chantal Saunders
Chantal Saunders
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It's back to the "check-out" counter for Amazon.com's (Amazon) "one-click" patent application.1 The Federal Court of Appeal (FCA) sent the application back to the Commissioner of Patents (Commissioner) for expedited re-examination with a direction to consider the issue of patentable subject matter after a purposive construction of the claims.2

In its initial decision, the Commissioner set out a novel test for determining patentable subject matter and stated that business method patents were traditionally considered non-patentable subject matter in Canada. In particular, the test included a determination of the "actual invention" or the inventive concept, and an assessment of whether the "invention" constituted patentable subject matter.

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