Patentability of New and Useful Arts in Canada: In Need of New and Useful Doctrine?

Abstract:

Canadian courts have recently been invited to grapple with the boundaries of patentable arts in the Amazon and Janssen cases. To correct confusion in the Canadian jurisprudence in this area, we propose a more deliberate juridical approach to subject-matter patentability, emphasizing the policy objectives of innovation, predictability, and consistency of application. This approach is achieved by infusing the term “useful arts” with a historical understanding and by recognizing that doctrines of patent validity such as novelty, utility, and non-obviousness may be better adapted to address patentability concerns. Useful arts are understood as evolving in scope, yet qualitatively distinct from liberal or cultural arts, requiring the practical application of the forces and materials of nature but excluding areas involving an ethical-professional relationship. Developing exclusions from patentability within this rubric will assist patent examiners to issue consistent and predictable decisions in ever-expanding fields of technology.