Canada Does Not Permit Software Patents

Canada, as put in perspective in light of Canada’s notorious (worldwide) patent trolls

WE RARELY write about Canadian patent law, but we certainly write about Canadian companies like BlackBerry and i4i because they use the US patent system (for the most part) to go after their rivals. IAM recently published, for a law firm as usual (shameless self-promotion), “Patent law: 2016 year in review” (it’s Gowling WLG Canada about various cases which we rarely touched or even mentioned here). “Patent assertion entities” is the final part of it, which basically alludes to patent trolls. BlackBerry and i4i both became Canadian patent trolls. As for WiLAN, a troll which is headquartered in Ottawa, it’s still as active as ever.

“As far as we are aware, software patents are not (or hardly) a problem in Canada, but the country has already yielded quite a few patent trolls…”According to End Software Patents with its resources on Canada, Canada’s “Patent Act reads: “No patent shall be granted for any mere scientific principle or abstract theorem.”” In practice, however, a lot of the above entities simply pursue patents at the USPTO and then utilise as much as they can get there for litigation purposes.

Two Canadians, Ian Goodman and Dane Smith from “SIM. IP Practice,” (whatever that is, complete with the dot) published this article about “Test for Obviousness in Canada”. Before refusing a patent application,” it explains, “the Canadian Patent Office convenes a panel of the Patent Appeal Board (the “PAB”) to review the application and provide a recommendation to the Commissioner of Patents. This recommendation and the Commissioner’s determination on the allowability of the application are published together as a “Commissioner’s Decision”.”

This is the equivalent of PTAB in the US or the appeal boards (BoA) of the EPO.

They also said that Canada’s “Supreme Court further stated in Apotex that an “obvious to try” inquiry may arise in the fourth step of the test in “areas of endeavor where advances are often won by experimentation”.”

As far as we are aware, software patents are not (or hardly) a problem in Canada, but the country has already yielded quite a few patent trolls, which conveniently operate outside Canada (typically in countries that have software patents and where patent maximalism prevails). 

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