Can I Patent This?

One of the most frequent questions inventors and other people have regarding patents is whether or not what they have developed is patentable.  This article briefly answers what types of subject matter can be patented.  In future articles, we will discuss when a new development becomes a patentable invention. 

Patentable Subject Matter
As discussed in previous articles, patents protect inventions.  In order to be eligible for patent protection, you must show that your development fits within a recognized category of patentable subject matter.  In Canada, your development must either be an art, process, machine, manufacture or composition of matter. 

Arts and processes are steps or methods which act on objects to achieve a result.  Machines are usually well understood and can be a grouping of components which act together.  A manufacture is usually defined as something made by the hands of man while compositions of matter include chemical compositions.

Excluded Subject Matter
In Canadian law, scientific principles or abstract theorems are explicitly excluded from patentability.  This would typically include a mathematical formula.  Similarly, Canadian courts and the Canadian Patent Office have indicated that they also consider other types of subject matter to be unpatentable.  Significant examples include higher life forms, a series of mental steps, schemes or plans of doing business, methods of medical treatment and methods relying on professional skill. 

Special Case
One particular subject matter that is somewhat vague in Canada is software.  It is generally understood that software performs a series of steps and could therefore be considered a process or method itself.  However, patentability of software is grey in Canada because the patentability of software largely depends on whether or not the process that the software performs would be patentable even if it wasn’t performed by software.  The patentability of software is a more complex analysis than can be discussed in this article and will be the subject of a future article.

This article is intended only to give a general background on patentable subject matter.  It should be understood that there may be many ways to view and describe a technology to fit within one of the established categories of patentable subject matter.  Please contact the writer you have specific questions relating to whether your technology may include patentable subject matter.