Patentable Subject Matter

Slightly different in Canada from the United States.

1. Living matter

Uni-cellular life forms which are new, useful and inventive are patentable.

Higher life forms (animals, plants, seeds and mushrooms) are not patentable subject
matter. However, a process for producing higher life form may be patentable
provided the process requires significant technical intervention by man and is
not essentially a natural biological process which occurs according to the laws
of nature.

2. Medical treatments

A method or process of surgery or therapy on living humans or animals is not patentable.

Methods of diagnosing a physical disease or physical medical condition in a human
being, provided that the methods do not contain any step of surgery or therapy,
may be patentable.

In Canadian patent practice, method of medical treatment claims are converted to
German-style and Swiss-style use claims, which are patentable.

3. Scientific principle or abstract theorem

As in the US, mere scientific principles, abstract theorems, mathematical formulae and algorithms are not patentable.

4. Computer implemented inventions

As in the US, ‘software patents’ are problematic. Claims consisting solely of code listings are not patentable.

5. Games

A method for playing a game with a gaming apparatus or article is only patentable when the apparatus or article is new and inventive, or the apparatus or article is
being used for a new and non-analogous use.

6. Business Methods

Canadian jurisprudence is evolving regarding the permissibility of business methods. The Commissioner of Patents is opposed to them; a key Federal Court decision in the ‘one-click checkout’ case concluded that they are permissible under Canadian law. This decision has been appealed by the Commissioner and thus the patentability of business methods (and by inference many ‘software’ patents) is in flux.


Contact us for advice on your application.