The Canadian Patent Eligibility Landscape: 18 Months Post-Benjamin Moore

As in many other jurisdictions, Canadian patent applications for software and other computer-implemented technologies often face subject-matter eligibility objections. For many years, the Canadian Intellectual Property Office ("CIPO") applied internal guidance that led to a "problem-solution" style approach—similar to the European Patent Office's inventive step analysis—to determine eligibility.

More recently, following the Federal Court's decision in Benjamin Moore,¹ CIPO's framework became more applicant-friendly; if a practical application could be identified for the claimed subject-matter, eligibility was more readily recognized. However, on appeal, the Benjamin Moore decision was overturned,² and CIPO has since reverted to a more restrictive approach. Under CIPO's current practice, subject-matter eligibility is generally only recognized if the claimed invention results in improved functioning of the computer, or if the claims recite non-generic computer