Saturday, October 16, 2010

The Amazon One-click Canadian Federal Court Decision

My guess is that the Commissioner will appeal this decision, which holds that a business method "can be patented in appropriate circumstances". I don’t think she has much choice in this instance for the following reasons, among others:

1. The Court’s decision is unusually blunt, e.g. with references to
- “policy making”,
- “error of law and far outside the Commissioner’s jurisdiction”,
- “Patent Office’s change of heart”,
- “fundamentally erred”,
- “radical departure from the current regime requiring parliamentary intervention”;and,
- “It appears as if this was a “test case” by which to assess this policy, rather than an application of the law to the patent at issue”.

2. This kind of challenge to the Commissioner’s jurisdiction and legal capability cannot readily be ignored.

3. There are many references to the applicability or not of foreign law, which is a hot button issue in Canada, as elsewhere.

4. The perception of the independence of the Commissioner could be at stake. It's no secret that IP has become politicized at the highest levels and is a major issue in Canada/US relations in particular. Given the Commissioner’s dual roles - namely adjudicative and administrative - and the ambiguity of his/her independence in recent times - it might raise a lot of eye brows if she didn’t appeal on this occasion and there could a perception that she was under pressure from the Government to reach the decision not to appeal. The Courts and not the Government should decide whether she was right or wrong. On matters such as this, whether she is right or wrong in law, she clearly should be independent and seen to be so.

5. The issue itself. Don’t we need some bright lines, will patenting business methods help or harm innovation, will patenting business methods provide a windfall for the trolls?

BTW, see this from wherein yours truly is quoted by Joe Mullin.


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