Innovation In Limbo: A Disappointing Turn In The Benjamin Moore Saga

In our last comment on non-patentable subject matter, we provided our thoughts on the Federal Court of Appeal's decision in Canada (Attorney General) v Benjamin Moore & Co (the "Benjamin Moore Appeal"). As a top line, this decision was a loss for Canadian innovation. As we discussed in detail, the Federal Court of Appeal missed an opportunity to clarify the law of patentable subject matter, adopt the IPIC framework endorsed by Associate Chief Justice Gagné, and signal to the Canadian Intellectual Property Office ("CIPO") that its examination practices were out of step with the law. Instead, the Federal Court of Appeal further complicated an already complex area of the law, which will increase the costs of innovators to register their technologies in Canada.