Copyright 2010 – Bruce Madole

Supreme Court Patent Decision

Supreme Court Patent Decision As of October 14, 2010, the Supreme Court of Canada has upheld the patentability of business methods and processes, via its decision re: Amazon.com and it’s “one click” process. The question is … will this decision open new doors or opportunities for us to claim SR&ED? Or will it have a negative effect? As the consequences of this decision become better understood, I wonder if we should anticipate a flood of similar patent filings, and downstream from that, an increase in the number of claimants who are hoping to claim SR&ED costs for the development of patented (or patent pending) processes? In the past, the application for or granting of a patent has provided a degree of assurance about the presence of technological advancement in a project. It was, at the least, a strong indicator of SR&ED potential. As one of the side effects of this most recent decision, the technological focus underlying the patent process appears to have been diminished, if not eliminated. Does this decision represent, therefore, an erosion of the usefulness of patents in supporting the SR&ED argument? In my opinion, probably … but I think it is also true that the presence of a patent was never as decisive or supportive as we might have hoped it would be. Conversely, does the decision hold any promise as a supporting argument for the expanding of claims around the development of processes? In my opinion – probably not. The decision about patent law and patentability did not render any changes to the content of the income tax act, so far as I have read – all of the existing, well established

This document is the property of Bruce Madole, and is used by permission. All rights are reserved. The opinions expressed herein are personal, created for entertainment and information purposes, and are not intended to be relied on in place of professional counsel or advice. No part of this document may be re-used, transmitted or re-transmitted without the express prior written consent of the author, who can be contacted at: brucemadole@sympatico.ca

Copyright 2010 – Bruce Madole

Supreme Court Patent Decision

rules will still apply, and process-related claims are unlikely to become any easier to defend, in consequence. Instead, I expect that any discussion of patents will now (or still) be required to penetrate to a consideration of the technical content of a patent application, to establish the nature of the technological advancement embodied there. Of course it could be argued that this more detailed consideration of the advancement has always been required, so that the impact of this recent decision will be minimal, from a SR&ED perspective. Nor do I really expect that processes of any kind are suddenly going to become easier to claim, regardless of the level of technical content embodied there. It would be nice – but I’m not holding my breath. ( http://www.sredunlimited.com )

This document is the property of Bruce Madole, and is used by permission. All rights are reserved. The opinions expressed herein are personal, created for entertainment and information purposes, and are not intended to be relied on in place of professional counsel or advice. No part of this document may be re-used, transmitted or re-transmitted without the express prior written consent of the author, who can be contacted at: brucemadole@sympatico.ca

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