Software patents

How BC law treats it

Patents are federal and are granted by the Canadian Intellectual Property Office under the Patent Act, RSC 1985, c P-4. Section 27(8) bars patents for a mere scientific principle or abstract theorem. Courts have held that a computer-implemented invention can be patentable, but that the computer must be part of the actual invention, not just a tool for carrying out an abstract idea (Canada (Attorney General) v Amazon.com Inc, 2011 FCA 328). In Benjamin Moore & Co v Canada (Attorney General), 2023 FCA 168, the Federal Court of Appeal set aside a three part subject matter test imposed by the Federal Court and declined to lay down a new one, so the analysis still starts with purposive construction of the claims. A patent gives the owner the exclusive right to make, use and sell the invention for 20 years from the filing date, as long as annual maintenance fees are paid. For applications filed on or after December 1, 2020, the term can be extended by a patent term adjustment where the patent office took unreasonably long to grant it. Canada uses a first to file system. An applicant's own public disclosure, such as a demo, pitch or product launch, does not bar a Canadian application if it is filed within one year of that disclosure (s. 28.2), but many other countries have no similar grace period. Copyright and patents protect different things. Copyright protects the code automatically as a literary work, but not the underlying idea or functionality. A patent can protect the functional method itself, regardless of how it is coded, but must be applied for, examined and paid for.

What it means for your business

For a tech founder, a patent can protect a genuinely novel technical method and add value in financing and acquisitions. It is costly and slow, and pitching or launching publicly before filing can destroy protection abroad. Many software businesses rely instead on copyright, trade secrets and contracts. The decision should be made before any public disclosure, with a clear view of where the company will seek protection. Example: A Victoria startup develops a new method for compressing sensor data on low power devices. It files a Canadian patent application before presenting at an investor demo day, preserving its ability to seek protection in other countries.

Risks and common mistakes

Pitching or launching publicly before filing, losing patent rights in countries with no grace period. Assuming copyright in the code also protects the underlying functionality. Seeking a patent for a business method that adds nothing technical beyond running on a computer. Missing annual maintenance fees, which causes the patent or application to lapse. Failing to have employees and contractors assign inventions to the company in writing.