going to the Federal Court of Appeal

The AG of Canada and the Commissioner of Patents have filed a  Notice of Appeal to the Federal Court of Appeal in the case. In the notice, the government argues that the decision of the Federal Court of Canada released on October 14, 2010,, Inc. v. Attorney General of Canada was wrong and that Amazon’s one click patent is not patentable subject matter in Canada.

The Patent Appeal Board rejected Amazon’s “One-Click” patent application. Re Patent Application No. 2,246,933 (March 5, 2009) for three principal reasons:

First, the Board ruled that if a claimed invention is not “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 of condition”; it is not an art under Section 2 of the Patent Act.

Second, the Board held that business methods are non-patentable subject matter in Canada. According to the Board, 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.”

Third, the Board held that the substance of a claimed invention is non-statutory if no technological innovation has been added to human knowledge. The Board did not view the contribution of Amazon’s one click invention to be technological in nature.

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