Canadian Patent Office Rejects Software And Business Model Patents

from the one-click-to-reject dept

While the US Supreme Court will soon be considering the question of software and business method patents (and the US Patent Office is still reviewing whether or not Amazon's "one-click patent" is valid), up North, the Canadian Patent Appeal Board (CPAB) appears to have resolved both issues by rejecting all software and business method patents in explaining why it's rejecting Amazon's one-click patent in Canada. Basically, the CPAB found that since software and business method patents haven't been allowed in the past, even if they're not explicitly forbidden by the patent law, it's such a big change that it should require legal action to allow them:
"since patenting business methods would involve a radical departure from the traditional patent regime, and since the patentability of such methods is a highly contentious matter, clear and unequivocal legislation is required for business methods to be patentable."
This actually makes a fair amount of sense. In the US, once the State Street case was decided, there was suddenly a mad rush to patent business methods and software, and part of the problem was that because so many people had considered the two unpatentable before, there wasn't the same set of prior art in the patent system that would have eliminated the worst abuses.

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  • icon
    slacker525600 (profile), 8 Jun 2009 @ 3:03pm

    this seems good and bad

    I like the fact that they have acknowledged that the CPAB shouldnt be making this decision unilaterally, but I dont know if I trust the politicians to be making the decisions either. Lets see how the lobbyists write this upcoming legislation.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 8 Jun 2009 @ 3:34pm

    Yes! my country isn't quite as fucked up as I feared it was becoming! now if we just add some reasonable things like provisions for independent invention, maybe I'll stop crying for the destruction of the patent system completely!

    Tata guys, I'm going to get plastered this news is so good!

    reply to this | link to this | view in chronology ]

  • icon
    Pjerky (profile), 8 Jun 2009 @ 4:58pm

    I don't trust lawmakers

    As much as I agree with the court ruling I have to say that I really don't trust nor expect politicians to make the right choice. They will do whatever they are told by those that give them the most money and/or gifts. It is nice to see that the courts still have some decency though. Lets hope enough politicians will have the same decency.

    reply to this | link to this | view in chronology ]

  • identicon
    dave, 8 Jun 2009 @ 6:41pm

    Incorrect Headline

    Just a question. But why do all the headlines lump Business Methods in with Software Patents? The article does not mention anything about Software Patents... or did I miss something?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 8 Jun 2009 @ 6:58pm

      Re: Incorrect Headline

      Because neither one of them should be allowed a patent ???

      reply to this | link to this | view in chronology ]

    • icon
      Mike Masnick (profile), 8 Jun 2009 @ 7:35pm

      Re: Incorrect Headline

      Just a question. But why do all the headlines lump Business Methods in with Software Patents? The article does not mention anything about Software Patents... or did I miss something?

      The two are generally considered to be effectively the same thing. Software is really just a description of a business method. That's why this particular case, which was about Amazon's "1-click" patent -- which is both software and a business method.

      reply to this | link to this | view in chronology ]

      • identicon
        angry dude, 8 Jun 2009 @ 8:19pm

        Re: Re: Incorrect Headline

        "The two are generally considered to be effectively the same thing. Software is really just a description of a business method."

        Only in little techdirt lemming-punk's world

        Are you really that clueless or just trying to fool us ?

        reply to this | link to this | view in chronology ]

      • icon
        kaplanmyrth (profile), 9 Jun 2009 @ 7:01am

        Re: Re: Incorrect Headline

        Business Method patents and Software patents definitely have a significant overlap, but they are not the same thing, at least in Canada, and this decision of the Patent Appeal Board does not have any significant bearing on software patents.

        The leading case on software patents in Canada is Schlumberger Canada Ltd. v. Commissioner of Patents, (1981) 56 C.P.R. (2d) 204 (FCA), in which the Federal Court of Appeal considered a patent on a process of analyzing mining information using a computer. Mathematical formulae are not patentable, and the court found that using a computer to perform the calculation is not enough to make the process patentable. The Supreme Court declined to hear the appeal, so the law in Canada is clear that software is not patentable. In practice, however, lots of patents are filed in Canada that are effectively software patents, and it is an area of some controversy.

        So the leading case regarding software patents in Canada is clearly not about business methods. They are often related, but should not be confused.

        Note that this decision of the Canadian Patent Appeal Board in the Amazon.com case is a lower level decision than the Federal Court of Appeal decision ruling against software patents in Schlumberger. We've seen that IP owners have still found ways to get software patents. We should not be too confident that this decision will stop business method patents either.

        BTW, having read Anonymous Coward's stab at IP lawyers at comment #9, I should note that I am an IP lawyer. But at least I'm not an anonymous coward.

        reply to this | link to this | view in chronology ]

        • identicon
          angry dude, 9 Jun 2009 @ 7:12am

          Re: Re: Re: Incorrect Headline

          "We've seen that IP owners have still found ways to get software patents. "

          Punky

          if you really are an IP lawyer you should know that there is no such thing as "software patent"
          Software per se is NOT patentable
          Process or method IS patentable, and has always been
          (the very first US patent was issued to Samuel Hopkins for the process of making potash and today all industrial processes are controleld by computer)
          An F grade for you
          Back to school, dude

          reply to this | link to this | view in chronology ]

          • icon
            Andy Kaplan-Myrth (profile), 9 Jun 2009 @ 7:19am

            Re: Re: Re: Re: Incorrect Headline

            Wow, you really are angry. Back to the Institute, dude.

            reply to this | link to this | view in chronology ]

            • identicon
              angry dude, 9 Jun 2009 @ 7:38am

              Re: Re: Re: Re: Re: Incorrect Headline

              f*** you dude, I AM at the institute
              it's called federal ******** administration

              reply to this | link to this | view in chronology ]

              • identicon
                Anonymous Coward, 9 Jun 2009 @ 2:14pm

                Re: Re: Re: Re: Re: Re: Incorrect Headline

                f*** you dude, I AM at the institute
                it's called federal ******** administration


                Hmm, I didn't even know there was a Federal Dumb-ass Administration. Oh well, I guess it's better to put you in some make-work program than the welfare you would otherwise be on.

                reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 11 Jun 2009 @ 9:42am

            Re: Re: Re: Re: Incorrect Headline

            ""We've seen that IP owners have still found ways to get software patents. "

            Punky

            if you really are an IP lawyer you should know that there is no such thing as "software patent"
            Software per se is NOT patentable"

            Congratulations, you completely missed the point. The point is, while they may not be legally labeled software patents, they overlap so much with software that they are effectively software patents (or at least close). Just because you take something and label it something else doesn't change what it really is.

            reply to this | link to this | view in chronology ]

      • identicon
        MikeIP, 11 Jun 2009 @ 2:40pm

        Re: Re: Incorrect Headline

        The two are only the same thing when claimed the same way. And any patent attorney that does that doesn't deserve the work. Bilski hasn't made much difference since the decision came down, at least for those applications and patents that were drafted pretty strictly to the guidelines drawn by State Street.

        reply to this | link to this | view in chronology ]

    • identicon
      angry dude, 9 Jun 2009 @ 7:05am

      Re: Incorrect Headline

      "Just a question. But why do all the headlines lump Business Methods in with Software Patents? The article does not mention anything about Software Patents... or did I miss something?"

      Yeah, you missed something

      Mikey is a PR hack for corporate dudes
      He is misinforming you about patents on purporse - to make his corporate masters happy AND get paid

      reply to this | link to this | view in chronology ]

  • identicon
    angry dude, 8 Jun 2009 @ 8:44pm

    "software patents"

    Read this, my little clueless and patentless techdirt lemming-punks:

    http://www.ipjur.com/01.php3

    reply to this | link to this | view in chronology ]

  • identicon
    staff1, 10 Jun 2009 @ 6:07am

    4,359,631

    "In the US, once the State Street case was decided, there was suddenly a mad rush to patent business methods and software, and part of the problem was that because so many people had considered the two unpatentable before..."

    Check out US patent 4,359,631. As you will see patents covering computer systems/software have been around long before State Street and in fact date to at least the 70's. It just depends on how you claim them. Your premise is wrong.

    reply to this | link to this | view in chronology ]

    • icon
      Mike Masnick (profile), 11 Jun 2009 @ 10:36am

      Re: 4,359,631

      Check out US patent 4,359,631. As you will see patents covering computer systems/software have been around long before State Street and in fact date to at least the 70's. It just depends on how you claim them. Your premise is wrong.

      No, the premise is exactly correct. I said that "so many people had considered the two unpatentable before..." I didn't say that none existed -- but I did (CORRECTLY) state that many did not believe such things were patentable and avoided even trying.

      That changed after State STreet.

      My premise was correct. Your comment is incorrect.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 11 Jun 2009 @ 8:55pm

      Re: 4,359,631

      4,359,631 was for a "self-service terminal", in other words, a vending machine. It was NOT a purely software patent, you deceptive sack of s**t.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 11 Jun 2009 @ 9:09pm

        Re: Re: 4,359,631

        "It was NOT a purely software patent, you deceptive sack of s**t."

        I don't think he said it was purely a software patent.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 12 Jun 2009 @ 12:48am

          Re: Re: Re: 4,359,631

          I don't think he said it was purely a software patent.

          I didn't say he did either.

          (See? I can play too!)

          reply to this | link to this | view in chronology ]

  • identicon
    Gene Cavanaugh, 10 Jun 2009 @ 2:39pm

    Canada rejects software and business model patents

    Good article.
    However, I think the abuse of the patent system goes deeper than that (even though I am a "patent" attorney).
    I think we need to:
    1. Get campaign finance reform, so that the patent law (like many other areas) will be less about getting the wealthy to donate and more about what is good for the nation,
    2. COMPLETELY rewrite the patent law - the law in PR China (even though the Chinese courts tend to ignore it) would be a great model - just enforce it!!!
    3. But, while we wait, you are right; fix this, anyway, as the Canadians have done.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 10 Jun 2009 @ 6:27pm

      Re: Canada rejects software and business model patents

      1. Get campaign finance reform, so that the patent law (like many other areas) will be less about getting the wealthy to donate and more about what is good for the nation,

      Or maybe the US needs to become a democracy. If the wealthy then want to try to bribe all of us, then go for it!
      Democracy in the US, NOW!

      reply to this | link to this | view in chronology ]

    • identicon
      MikeIP, 11 Jun 2009 @ 2:38pm

      Re: Canada rejects software and business model patents

      China's patent laws strongly reflect the EU's patent laws, which allow software patents that enable a technical effect and are not software per se (there must be some hardware involved).

      reply to this | link to this | view in chronology ]

  • identicon
    adele pace, 25 Jun 2009 @ 4:08am

    Agree with the comment that there is significant overlap but aren't the same thing.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 3 Mar 2011 @ 9:55pm

    Fundamentally, software and business methods are both the same because business method patents actually rely on the validity of a software patent. All business method patents, by default, include a computing device because of this. Go ahead, look some up.

    And I'm no an anonymous coward... I'm just lazy. n.n

    Legally, they are the same thing because if software patents are ever invalidated or changed it has the potential and is even likely to affect business method patents.

    Fundamentally, it can be argued with some validity, that it is purely a software patent, and that all business method patents, due to the origin of their current supposed patent-ability are in fact software patents.

    In fact, very recently, a large number of business method patents were invalidated for not mentioning a computer (possibly all that don't mention a computer). At least it was standard legal practice in light of the legally muddy landscape.

    reply to this | link to this | view in chronology ]


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