Patents

In a decision of the Federal Court of Canada released on October 14, 2010, Amazon.com, Inc. v. Attorney General of Canada, the Court allowed an appeal from a ruling by the Commissioner of Patents (“Commissioner”) that had originally denied a patent application by Amazon.com Inc. (“Amazon”) for its pervasively successful one click online ordering technology. The Commissioner had held that the subject matter of Amazon’s application did not qualify as patent-eligible subject matter the Patent Act. In overturning this finding, the Court instead held that the Commissioner applied wrong legal tests in rejecting Amazon’s patent application, and articulated a new test that does not preclude computer-implemented innovations and business methods from being patented in Canada if they are directed to subject matter that meets the general test of what may constitute an “invention” under section 2 of thePatent Act.…

Earlier this week, the US Supreme Court released its opinion in the BILSKI ET AL. v. KAPPOS case. The Court affirmed the decision of the Federal Circuit Court of Appeals that the invention in issue, a method of hedging risk, was not-patentable. However, there appears to be some significant disagreement in deciding exactly what the Court decided, as relates to the question of the patentability of business methods. On my reading of judgment, by a majority of 5 to 4, the Court was of the view that pure business methods are not patentable subject matter in the US.…