CA: Cour fédérale détermine que la demande de brevet One-Click d’ comprend de la matière brevetable

AMAZON.COM, INC. v. THE ATTORNEY GENERAL OF CANADA et al décidée le 14 octobre 2010

Extraits pertinents:

[3] At its core, the question is whether a “business method” is patentable under Canadian law. For the reasons which follow, the Court concludes that a “business method” can be patented in appropriate circumstances.



A. Adoption of International Principles 

[37] The Commissioner is thus bound by Canadian patent regime and its interpretation by the Courts. On this she has no discretion. International jurisprudence, and certainly the policies advocated therein, is not determinative, but at most a potential guide when applied correctly and mindfully. As becomes evident, many of the Commissioner’s errors stem from her adoption of a policy role and the importation of policies not concordant with Canadian law.

B. Form and Substance Approach



[47] The Commissioner has simply adopted a novel legal test by which to assess patentable subject-matter. It is not supported by recent Canadian jurisprudence or the Patent Act. This is an error of law and far outside the  Commissioner’s jurisdiction.

C. Definition of Art/Change of Character or Condition


[60] The Commissioner’s articulation of the test for art is too restrictive in requiring, as discussed in greater detail below, that the knowledge in question be scientific or technological in nature. Further, her application of the test suggests that the goods themselves must be changed in some way. Her interpretation of practical application does not take into account a wider definition of physical, “change in character or condition” or the concrete embodiment of an idea.

D. “Business Method Exclusion”


[68] The approach in the USA, Australia, and as it ought to be in Canada, makes an eminent amount of sense given the nature of our legislation. It allows business methods to be assessed pursuant to the general categories in s. 2 of the Patent Act, preserving the rarity of exceptions. It also avoids the difficulties encountered in the UK and Europe in attempting to define a “business method”. There is no need to resort to such attempts at categorization here. Contrary to what the Commissioner suggests, to implement a business method exception would be a “radical departure” from the current regime requiring parliamentary intervention.


E. “Technological” Requirement
[71] Even if patents generally concern the protection of advances in technology broadly defined, it is difficult to see how introducing this sort of technological test into the Canadian patent system would do anything but render it overly restrictive and confusing. It would be highly subjective and provide little predictability. Technology is in such a state of flux that to attempt to define it wouldserve to defeat the flexibility which is so crucial to the Act. This view is supported by authorities in both the USA and Australia: see Bilski/USCA, above at 1395 and Grant, above at paragraph 38. The current assessment of subject matter, without reference to such concepts, is preferable. 



[72] Having determined that the Commissioner fundamentally erred in the legal principles used to determine patentability this Court will now examine the claims de novo in order to determine whether they are patentable subject matter. 


[73] The Court finds that a purposive construction of the “system claims” (e.g. claim 44 and its associated dependant claims) clearly discloses a machine which is used to implement’s one-click ordering system. The described components (e.g. a computer) are essential elements in implementing an online ordering process. This is not merely “a mathematical formula” which could be carried on without a machine or simply a computer program. A machine is patentable under s. 2 of the Patent Act. The Commissioner herself found that “in form” the claims disclosed such an invention; it was only when she took a second step to subjectively consider the “substance” that she found otherwise. As discussed, this is unsupported in law. The Court therefore finds the machine claims to be patentable subject matter. 

[74] Turning to the process claims, the Commissioner clearly erred by “parsing” the claims into their novel and obvious elements in order to assess patentability. When viewed as a whole it is clear that the claimed invention is a process which uses stored information and ‘cookies’ to enable customers to order items over the internet simply by ‘clicking on them’. It is accepted that the “oneclick” method is novel; the Court finds that an online ordering system which facilitates this adds to the state of knowledge in this area.

[75] The new learning or knowledge is not simply a scheme, plan or disembodied idea; it is a practical application of the one-click concept, put into action through the use of cookies, computers, the internet and the customer’s own action. Tangibility is not an issue. The “physical effect”, transformation or change of character resides in the customer manipulating their computer and creating an order. It matters not that the “goods” ordered are not physically changed.

[76] It is undisputed that this invention has a commercially applicable result and is concerned with trade, industry and commerce. Indeed, its utilization in this very realm seems to be at the root of the Commissioner’s concern.

[77] In light of the above, the Court finds the process claims to be a patentable as an art and process. As discussed at length earlier in this decision, there is no need to continue the analysis once this has been determined. There is no exclusion for “business methods” which are otherwise patentable, nor is there a “technological” test in Canadian jurisprudence. Even if there was some technological requirement, in this case the claims, when viewed as a whole, certainly disclose a technological invention.


One Response to “CA: Cour fédérale détermine que la demande de brevet One-Click d’ comprend de la matière brevetable”

  1. russelbrowder Says:

    In fact when someone doesn’t understand after that its
    up to other users that they will assist, so here it occurs.

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