Software patents under Canadian patent law

Neither computers nor software are specifically mentioned in the Canadian Patent Act. Canadian courts have held that the use of a computer in an invention neither lends, nor reduces patentability. Therefore, that an invention involves a computer is not determinative of patentability; instead, whether a computer-using invention is patentable turns on whether that invention meets the general requirements for patentability as would apply to any invention.

Computers, software, or related terms do not appear anywhere in the Patent Act. Therefore, as with any other invention, to be patentable a computer-using invention must meet the general requirements for patentability of any invention as found in the Act.

"Invention" is defined in Section 2 of the Patent Act as:

"[A]ny new and useful art, process, machine, manufacture or composition of matter, or any new and useful improvement in any art, process, machine, manufacture or composition of matter".

So, any invention must be new and useful. Inventions must also be non-obvious as provided in section 28.3. Inventions must also fall into one of the five categories of patentable subject matter found in the definition of "invention" above.

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