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

GNU/Linux Estimated at 8% "Market Share" Today (in statCounter)
Days ago it said 7.1%, then 7.3% or 7.4%
IBM Stock Collapses and It's Only the Beginning
Will GAFAM soon follow and will any executives be arrested for the accounting fraud insiders have long cautioned about?
 
Who Next After IBM? (Bubbles Don't Last Forever)
the demise of companies with "ai" in their name/domain
EPO "Cocaine Communication Manager" - Part XIV - "Not One of Us" (How the Group Dubbed by EPO Insiders "Alicante Mafia" Pushes Out Talent, Replacing It With Friends)
misuses the EPO's budget like it is a fountain of money for his friends
LibreTech Collective Abandons Microsoft GitHub and All Other Proprietary Software
Each time a project eliminates control by a hostile party it stands to gain
Links 15/07/2026: US Regime "Cuts Two Utah National Monuments by More Than 90%", "Hormuz is Less Crucial Than It Was"
Links for the day
Gemini Links 15/07/2026: Old Computer Challenge, "Trial by Fire", LLM Slop Destroying Companies
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, July 14, 2026
IRC logs for Tuesday, July 14, 2026
Heshan de Silva-Weeramuni Becomes Program Manager at the Free Software Foundation (FSF)
Heshan's addition means that the FSF is growing after a solid financial year (best in years)
Michael McMahon Explains Distributed Denial of Service (DDoS) Attacks on the Free Software Foundation (FSF)
The real solution is a curb on botnets. A mitigation strategy, however, would involve going static.
Matters of Public Safety
"Police say Ann Widdecombe killed in 'targeted attack' as motive investigated"
The Register MS and Its Promotional Microsoft Content
It's not too hard to see what the business model of The Register MS is
IBM: From $306 to $212 in 7 Days, IBM Won't Go Up More Than 50% to Where It Was at 'Peak Vapourware'
There's a limit to how much or how long a company can fake its performance and its potential [...] Early this morning a few insiders ("traders") cashed in on their "pump-n-dump"
Red Hat Staff Needs to Start Looking for the Next Job
Workers can conveniently lie or deny it to themselves, but waves of PIPs ("silent layoffs") will sweep over more and more units or teams as the company runs out of money to play with
IBM the Next Bear Stearns
IBM cannot recover if all it has to show is vapourware
I'll Be Extremely Difficult for Microsoft to Sell Any XBox Consoles Now
Microsoft understands this
How Software Freedom Would Benefit Everybody
A society that denies control by greedy companies would do a disservice to monopolies and improve all services to citizens
Links 14/07/2026: Harsh But Also Fair Criticism of Hey Hi (AI) Slop, 'Open' AI Shuts Down Its Own Products as Funds Run Out
Links for the day
Gemini Links 14/07/2026: Old CD Binder and AWK
Links for the day
In Defence of Physical Tickets
Tickets are not some "app" and not some "code" on some "screen"
Microsoft Layoffs Not Limited to XBox (False Narrative in the Mainstream Media)
Microsoft is becoming less relevant and workforce reductions won't end any time soon
Links 14/07/2026: Plagiarism Spun as "Training", Zelensky Announces Leadership Shuffle
Links for the day
The Register MS Has Just Published "AI" Webspam That Mentions "AI" 54 Times. It Was Paid to Do This.
Who pays for all this "AI" hype or "buzz"?
Gemini Links 14/07/2026: Self-Advocacy Online; "The Internet Is Dead: How the Web Lost Its Human Soul"
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, July 13, 2026
IRC logs for Monday, July 13, 2026
Modern Technology Harms Women More Than Men (Because the 'Tech Bros' Who Dominate STEM Have a Poor View of Women)
“Privacy protects us from abuses by those in power, even if we're doing nothing wrong at the time of surveillance.”
Internet Relay Chat Trolls Are Not Expressing Opinions, They Are Saboteurs
For the record
Links 14/07/2026: "The Freedom of Information Act Is in Serious Trouble"; Irish Datacenters Use Up Almost 25% of Total Energy
Links for the day
The Register MS: "AI" Puff Pieces for Sale, Not Journalism at All, Just "Webspam"
The Register MS isn't the sole culprit
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, July 12, 2026
IRC logs for Sunday, July 12, 2026
How We Do Techrights (and What's Changing Next Week)
Many former news sites no longer yield much non-meaningless news (not anymore); there's a gap to be filled