Can You Patent That? A Review of Subject Matter Eligibility in Canada and the United States

Abstract

Exclusions to patentable subject matter are driven primarily by the courts. In this paper, I examine how the courts in Canada and the United States have arrived at their various exclusions to subject matter eligibility. I argue that judicial exclusions from subject matter eligibility ought to be approached narrowly and strictly. Broad categorical exclusions of patentable subject matter by the courts defeat the underlying purposes of the patent system by foreclosing entire avenues of progress ab initio. If the subject matter in question can be made to fit within definition of invention (even if slightly uncomfortably), then the courts should aim to ‘breathe life’ into the bare, and sometimes dated, words of patent statutes. Indeed, patent statutes are drafted with a view to the unforeseen; any judicial interpretation of the word “invention” must give deference to this vision.

Keywords: Patents, Patentable, Subject Matter, Invention, Bilski, Amazon, Harvard Mouse, Comparative, Canada, US, Eligible, Eligibility