Non patentable subject matter

Non patentable subject matter

1. Mere scientific principle or abstract theorem – Purposive [Canada] Literal [no]

   1. 
      S.27(8)
      
      1. 
         No patent for principle or abstract theory
         
         1. 
            Natural phenomena and laws of nature
            
            1. 
               Laws of gravity/physicals = specifically excluded
               
         2. 
            Abstract theorem
            
            1. 
               Math expressed in formula = excluded
               
   2. 
      Computer programs?
      
      1. 
         Historically computer programs are not patentable because they are mathematical algorithms based on s.27(8)
         

      2. Case: Example Schlumberger v Canada

         1. 
            Facts:
            
            1. 
               Wanted to patent a user friendly computer program regarding oil and class.
               
         2. 
            Ratio
            
            1. 
               Court stated that the process of carrying out calculations was not patentable because they are mathematical formula
               

      3. Case example: Motorola Inc. – How to patent computer programs

         1. 
            Ratio
            
            1. 
               Case allowed to patent a mathematical algorithm by claiming it was part of a machine [the computer] that performs calculation.
               
            2. 
               If a novel algorithm is embodied in firmware or hardware it will not be characterized as abstract and will be patentable.
               

      4. Case example: amazon Canada patent of business method- Purposive approach vs Literal

         1. 
            Facts:
            
            1. 
               Amazon applied for patent for one click purchase and applied for patent.
               
         2. 
            Reasoning
            
            1. 
               Court stated that in order to determine actual invention of a patentable subject have to use a purposive construction of the patent claim not literal
               
               1. 
                  Interpret in broad manner according to the actual goal of the invention itself.
                  
               2. 
                  ADD LITERAL APPROACH
                  
            2. 
               To avoid patenting a mere idea or discovery, the claimed invention must have some physical existence that manifests a discernible effect or change. This is not met by virtue of the fact that the claimed invention have a practical application
               
               1. 
                  In order to patent idea needs some sort of physical existence that manifests a discernable effect or change.
                  
                  1. 
                     Abstract idea becomes patentable because it has practical embodiment—but test is ineffective because any business method is practical
                     
            3. 
               Claim will fail if it is only mathematical component, instead if it is one piece of a practical component, can still get patent.
               
            4. 
               Patent achieved
               
      5. 
         Mathematical formula in computer system = patentable, but if it is just an algorism = no patent.
         
   3. 
      Requirement
      
      1. 
         Where a computer is found to be an essential element of a construed claim, the claimed subject matter will generally be statutory. A good indicator that a claim is directed to statutory subject matter is that it provides a technical solution to a technical problem.
         

2. Professional arts/skills

   1. 
      Overview
      
      1. 
         Professional skills are not patentable, and not included in art or process because they reflect the personal knowledge and capacities that one would expect from anyone skilled in their field.
         

   2. Case Example: Lawson v Canada

      1. 
         Fact:
         
         1. 
            Can you patent a skill of subdividing land that increases density
            
      2. 
         Ratio
         
         1. 
            The professional skill of surgeon or barrister are not proper subject matter for patent, so the skill of subdividing = a professional skill which is not patentable
            
         2. 
            Don’t want to create a monopoly in skills that we would prefer many individuals to use.
            
            1. 
               Art = practical application of knowledge—defined in some ways as a manner to exclude skills of individuals in a professional business aspect as opposed to hobby.
               

3. Higher life forms

   1. 
      Overview
      
      1. 
         Lower life forms are patentable subject matters
         
         1. 
            Micro organisms, yeasts, moulds, fungi, bacteria, unicellular algaie, cell lines, viruses, or protozoa = composite of matter
            
      2. 
         Higher life forms are not patentable subject matter
         
         1. 
            Seeds, plants, animal
            

   2. Case Example: Harvard College

      1. 
         Facts:
         
         1. 
            Case involving mouse
            
      2. 
         Ratio
         
         1. 
            Majority:
            
            1. 
               Common sense difference between lower and higher life forms. Higher life form is more connected to humans and only parliament can extent patent protection to plants and animals.
               
               1. 
                  Exception: fertilized mouse egg is patentable
                  
            2. 
               Legislation doesn’t include life form that can get up and walk away and if it doesn’t deal with higher life form than it shouldn’t be patentable. There is a common sense difference between the two.
               
            3. 
               Can patent lower life forms—produced as chemical compounds and prepared and formed in such large numbers that any measurable form and characteristics should come in stat subject matter
               
               1. 
                  Yeast, mould, viruses, etc.
                  
            4. 
               ACCEPTS that fertilized egg = patentable BUT NOT MOUSE
               
         2. 
            Dissent
            
            1. 
               Focus; innovation, public policy, keeping up with other nations in the innovation economy. Nothing in patent act to support conclusion that non-human life forms were intended to be excluded from the definition of invention and the legislators should draw this line.
               
            2. 
               Wanted to refused to interpret legislation expansively, but there are social benefits. There is nothing in patent act that non-human life was intended to be excluded from invention.
               
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