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

“Losing Huang Would Introduce a Lot of Uncertainty"
Huang won't last much longer
Intercontinental Brigading - Part XXXXV - The Brand (and Reputation)
"Russell Brand sentenced to 10 years and six months for rape and sexual assault"
Protestants at the EPO Fight On, Rising in Opposition to and Against Corruption, Also Against GAFAM
Don't say we didn't warn you...
When Some Footage Causes Your 'Company' to Lose Almost Half a Trillion Dollars in 'Value' in a Few Minutes Your Company is Fictionally Valued
stock slips 8% because the CEO cheats on the wife
 
MVIDIA Down About 30% in 5 Weeks, When Does the Media Call It "Bubble" Rather Than Frame It as Sex Scandal?
they'll find a way to blame "China"
Surreal Times
NVIDIA's shares fell 27% in 5 weeks
Links 10/11/2026: "Jensen Huang Could Face $81 Billion Divorce Bill" and "Nvidia Shareholders sue Jensen Huang"
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, November 09, 2026
IRC logs for Monday, November 09, 2026
Gemini Links 10/11/2026: Open Problem in Computer Science Due to Bloat and "Queueing Nine Hours for an iPhone"
Links for the day
GNU/Linux Rose to 6% as Laptop/Desktop Operating System in Azerbaijan
In the past two weeks the average measure as seen by Clownflare is 5.7%
Microsoft Will Pay $11,742 USD for Workers to Leave
11 lakh Indian Rupees
Since Records Began 18 Months Ago, statCounter Saw Chatbot Usage Falling Sharply
Chatbots are not becoming more popular and the commercial world is having second thoughts
Losing Their 'Faith' in Slop
Are leather jackets becoming a "signal" of "cheating on the wife"?
Boosters of Non-reciprocal Licensing Are Just Trying to Cancel Richard Stallman (RMS) and His Baby, GNU
If only they liked freedom as much as they love Microsoft (or Microsoft's GitHub, which is proprietary and unsafe)
Gemini Links 09/11/2026: Zephyr, Wireless Planet, and Old E-mail
Links for the day
IBM: From Illegal NDAs to Illegal Secret Settlements (Money in Exchange for Promise Not to Sue)
Insiders also explain why RAs may come weeks from now [...] IBM has marked 40,000 workers it wishes to get rid of
Links 09/11/2026: 'Humanitarian' Putin Knocks 600,000 Civilians Off the Grid, Eminem’s Publisher Sues Suno
Links for the day
Like Crooked Politicians, The Register MS is Selling "Dinners" (Access, Sponsors)
Talk about "hey hi".
The Register MS is Not Objective Regarding "AI", It's Paid by Pushers of the Pyramid Scheme (including Nvidia)
Some time soon we'll name some companies that pay millions to The Register MS in order to cement their role in the house of cards (while it lasts)
GAFAM Moribund
A lot of what we say about Microsoft in respect to debt is equally applicable to the rest of GAFAM
NVIDIA as a Scam Company Run by Scammers Who Fake Demand for Their Waste of Energy (Subsidising GPU Sales for Use Cases That Don't Exist)
First they targeted gamers, then fake 'currencies' (which turned out to be a bust), now it's slop (obfuscation of plagiarism using brute force and fusion) [...] We're quite glad that Huang publicly broadcasts how untrustworthy he is
Links 09/11/2026: Nvidia CEO Jensen Huang Cheats on Wife With A Suspected Chinese Spy, "400,000 Russians Killed in Battle Since 2022 Invasion"
Links for the day
Zero Tolerance for Slop
very few sites that dabbled in slop ended up well off (for it)
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, November 08, 2026
IRC logs for Sunday, November 08, 2026
Gemini Links 09/11/2026: "The Blue Wave Won't Save Us" and "Discoverability Is Only Solved If You Can Be Discovered"
Links for the day
IBM 'Robbery': No More Car Allowance in the UK, Severance Shredded, CEO Pay Up 51% in One Year While Thousands Laid Off in Secret
Why does a CEO reward himself so much when the company does so badly?
Digitalisation Is Not Inevitable or Unavoidable
Nor inescapable
Gemini Links 08/11/2026: "Back", Zot, and Information Overload
Links for the day
Intercontinental Brigading - Part XXXXIV - Why the Swatting Failed
After that we only ever heard from or spoke to cops when we invited them to our home to collect evidence
“Concerned Microsoft Workers” Say “Working at Microsoft Has Become Joyless and Demoralizing.” (That's What Microsoft Wants, More Will Leave That Way)
Many Microsoft employees are going to leave
The Register MS is Losing Hundreds of Thousands of Pounds a Year While Directors Pay Themselves Hundreds of Thousands of Pounds a Year in Dividends
they take money from slop pushers and have clearly compromised some journalistic standards in the process
GNU/Linux Measured at 7.4% in the UK This Weekend: Clownflare Radar
I hope that one day GNU/Linux will be everywhere here
Never a One-Person Project
Just because I'm the main "public face" of the site (who takes all the insults and SLAPPs) doesn't mean I deserve all the credit
“I Always Expect to Lose. I Fight Anyway, and Sometimes I Win.” — Richard Stallman
To change the world meaningfully people must think big
Stop Looking for News About "Layoffs", Layoffs Are Over (They've Been Rebranded)
To properly assess the status quo we need other yardsticks
Links 08/11/2026: Bosses Who Were Forcing Their Workers to Use Slop Change Mind, "Rapper RBX Files Ninth Circuit Appeal in Fraud-Focused Class Action Lawsuit Against Spotify"
Links for the day
Links 08/11/2026: Why Vikings Stayed in Iceland and "TikTok Accused Of Promoting Sex Industry To Young Girls"
Links for the day
Gemini Links 08/11/2026: "Before Sunrise" and LLM Scrapers Versus Self-Hosting (or Web in General)
Links for the day
Intercontinental Brigading - Part XXXXIII - Weaponising Cops in Another Continent (Europe), Knowing They Cannot Come to Your Home in America, While Threatening Women
This year it culminated in death threats
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, November 07, 2026
IRC logs for Saturday, November 07, 2026