19 November 2010

Amazon '1-Click' Heads for the Canadian Federal Court of Appeal

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to view the complete
Notice of Appeal
Last month we reported the ruling of the Canadian Federal Court, overturning the decision of the Commissioner of Patents to refuse Amazon.com's claims covering its '1-Click' ordering system on the grounds that they were directed to unpatentable subject matter, namely a "business method".

On 15 November 2010, the Attorney General of Canada and the Commissioner of Patents filed a Notice of Appeal in the Federal Court of Appeal against the ruling.  The grounds of the appeal are that the primary judge "erred in fact and law" in finding that the Amazon claims comprise patentable subject matter. 

In particular:
  1. that the judge erred in his interpretation of the terms "art" and "process" in the Canadian Patent Act, by construing them so broadly as to encompass the Amazon method claims;
  2. that he further erred in construing the term "machine" so broadly as to encompass the Amazon system claims;
  3. that he erred in finding that an "invention" need not display a technological aspect;
  4. that he erred in rejecting the "form and substance" approach for analysing the "invention", which had been employed by the Commissioner of Patents;
  5. that he erred in not properly applying the "what has been discovered" approach for analysing the invention, which the appellants allege has been described in "binding jurisprudence"; and
  6. that he erred in characterising the invention of the method claims such that it fell within the scope of the terms "art" or "process", and in characterising the invention of the system claims such that it fell within the scope of the term "machine".
We will continue to keep an eye on this case as it progresses.


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