Bonum Certa Men Certa

Canada Does Not Allow 'Classic' Software Patents, But There Are Loopholes

Combining copyrighted code with a machine (patentable) does not render this code patentable

Copyright not patentable



Summary: Clarifying the situation in Canada, where law firms try to convince engineers to pursue software patents using loopholes that can help fool examiners but not courts

FOR BETTER OR for worse, Canada's patent policy has rarely been covered here (this reference page about it was last updated in 2013*). It's a large country, albeit not a large population, and patents from Canada tend to target the US, with lawsuits too being filed in the US for maximal impact.



"The software must be more than an algorithm," says this new article titled "Patents in Canada". It was published some days ago and here is the relevant part:

To be patentable, software must be properly regarded as falling under one of the categories of invention outlined in Section 2 of the Patent Act, namely:

“any new and useful art, process, machine, manufacture or composition of matter, or any new and useful improvement in any art, process, machine, manufacture or composition of matter.”

The software must be more than an algorithm (Section 27(8) of the Patent Act prohibits: “mere scientific principles or abstract theorem”). If the software is a method and the method, on its own merits, does not pertain to patentable subject matter under Section 2 of the Patent Act, the method does not become patentable subject matter by virtue of being carried out on a computer.


Bereskin & Parr LLP's Paul Horbal and Denver Bandstra, both of whom working for the patent microcosm (law firm based in Canada), are trying to sell patent maximalism in a journal for patent maximalists. From the relevant passages (covering Mayo and Alice):

One common form of intellectual property protection sought for mobile apps and software generally is the “utility patent,” more commonly simply called a “patent.” A utility patent is sometimes referred to as the “Cadillac” of intellectual property; it can confer unparalleled status to the owner when compared to other forms of IP. Like its automotive counterpart, however, a utility patent can be expensive to obtain. In addition, the eligibility of software-based inventions for utility patents has been a topic of considerable debate in recent years. Courts in the United States and elsewhere have attempted to establish rules (e.g. Mayo and Alice) for when software-based inventions are eligible for patent protection. These rules can be difficult to parse, and often require the assistance of a professional to decide whether it will be possible to obtain a utility patent. Finally, a utility patent requires the owner to publicly disclose the inner workings of their invention, and to eventually make it freely available for use when the patent expires.


The above says that "the eligibility of software-based inventions for utility patents has been a topic of considerable debate in recent years." Many people wrongly assume that just because they put software "on the Internet" or "in a car" or "on a phone" that suddenly makes it innovative and/or physical. As any person with background in computing can tell, that's just utter nonsense. All these loopholes for patenting software have long been lobbied for by the patent microcosm and companies like IBM. When such patents get tested in court (as happens habitually in the US) they typically perish, so why grant these in the first place? _____ * "Since 2005," says swpat.org, "the Canadian patent office's non-legally-binding Manual of Patent Office Practice talks of "computer-implemented inventions" and says "an act or series of acts performed by some physical agent upon some physical object and producing in such object some change either of character or condition" and "it must produce an essentially economic result in relation to trade, industry or commerce"."

Recent Techrights' Posts

CISA Has a Microsoft Conflict of Interest Problem (CISA Cannot Achieve Its Goals, It Protects the Worst Culprit)
people from Microsoft "speaking for" "Open Source" and for "security"
[Video] Time to Acknowledge Debian Has a Real Problem and This Problem Needs to be Solved
it would make sense to try to resolve conflicts and issues, not exacerbate these
Daniel Pocock elected on ANZAC Day and anniversary of Easter Rising (FSFE Fellowship)
Reprinted with permission from Daniel Pocock
 
Mark Shuttleworth, Elio Qoshi & Debian/Ubuntu underage girls
Reprinted with permission from disguised.work
Karen Sandler, Outreachy & Debian Money in Albania
Reprinted with permission from disguised.work
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, April 25, 2024
IRC logs for Thursday, April 25, 2024
Links 26/04/2024: Facebook Collapses, Kangaroo Courts for Patents, BlizzCon Canceled Under Microsoft
Links for the day
Gemini Links 26/04/2024: Music, Philosophy, and Socialising
Links for the day
Microsoft Claims "Goodwill" Is an Asset Valued at $119,163,000,000, Cash Decreased From $34,704,000,000 to $19,634,000,000 and Total Liabilities Grew to $231,123,000,000
Earnings Release FY24 Q3
More Microsoft Cuts: Events Canceled, Real Sales Down Sharply
So they will call (or rebrand) everything "AI" or "Azure" or "cloud" while adding revenues from Blizzard to pretend something is growing
Links 25/04/2024: South Korean Military to Ban iPhone, Armenian Remembrance Day
Links for the day
Gemini Links 25/04/2024: SFTP, VoIP, Streaming, Full-Content Web Feeds, and Gemini Thoughts
Links for the day
Audiocasts/Shows: FLOSS Weekly and mintCast
the latest pair of episodes
[Meme] Arvind Krishna's Business Machines
He is harming Red Hat in a number of ways (he doesn't understand it) and Fedora users are running out of patience (many volunteers quit years ago)
[Video] Debian's Newfound Love of Censorship Has Become a Threat to the Entire Internet
SPI/Debian might end up with rotten tomatoes in the face
Joerg (Ganneff) Jaspert, Dalbergschule Fulda & Debian Death threats
Reprinted with permission from disguised.work
Amber Heard, Junior Female Developers & Debian Embezzlement
Reprinted with permission from disguised.work
[Video] IBM's Poor Results Reinforce the Idea of Mass Layoffs on the Way (Just Like at Microsoft)
it seems likely Red Hat layoffs are in the making
Ulrike Uhlig & Debian, the $200,000 woman who quit
Reprinted with permission from disguised.work
IRC Proceedings: Wednesday, April 24, 2024
IRC logs for Wednesday, April 24, 2024
Over at Tux Machines...
GNU/Linux news for the past day
Links 24/04/2024: Layoffs and Shutdowns at Microsoft, Apple Sales in China Have Collapsed
Links for the day
Sexism processing travel reimbursement
Reprinted with permission from disguised.work
Girlfriends, Sex, Prostitution & Debian at DebConf22, Prizren, Kosovo
Reprinted with permission from disguised.work
Microsoft is Shutting Down Offices and Studios (Microsoft Layoffs Every Month This Year, Media Barely Mentions These)
Microsoft shutting down more offices (there have been layoffs every month this year)
Balkan women & Debian sexism, WeBoob leaks
Reprinted with permission from disguised.work
Martina Ferrari & Debian, DebConf room list: who sleeps with who?
Reprinted with permission from Daniel Pocock
Links 24/04/2024: Advances in TikTok Ban, Microsoft Lacks Security Incentives (It Profits From Breaches)
Links for the day
Gemini Links 24/04/2024: People Returning to Gemlogs, Stateless Workstations
Links for the day
Meike Reichle & Debian Dating
Reprinted with permission from disguised.work
Europe Won't be Safe From Russia Until the Last Windows PC is Turned Off (or Switched to BSDs and GNU/Linux)
Lives are at stake
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, April 23, 2024
IRC logs for Tuesday, April 23, 2024
[Meme] EPO: Breaking the Law as a Business Model
Total disregard for the EPO to sell more monopolies in Europe (to companies that are seldom European and in need of monopoly)
The EPO's Central Staff Committee (CSC) on New Ways of Working (NWoW) and “Bringing Teams Together” (BTT)
The latest publication from the Central Staff Committee (CSC)
Volunteers wanted: Unknown Suspects team
Reprinted with permission from Daniel Pocock
Debian trademark: where does the value come from?
Reprinted with permission from Daniel Pocock