Tag: Law

Time to Pay the Rent

We are here, we are here, we are here!!! You’d think the Crown would get this sooner or later.

As my old law prof, Bruce Wildsmith, has pointed out one more time, we recognized the rights of First Nations in 1761, did deals with them (especially in the Maritimes) as we dealt with other nations, we continued the recognition in theory until the time of the Charter, we locked them in section 35 of the Constitution in 1981 and now we have to recognize them as having practical and – hey – even commercial value.

Bring it on. Earning your living from your own assets. Imagine.

Canada resists patenting everything

A few New Yorkers ago there was a very good article on patent creeping in the US which describes the apparent desire of the US court to declare everything existing and being done in the universe as patentable. An interesting thread on MetaFilter was spawned.

As noted at the time in a neighbouring blog, fortunately Canada has resisted the urge and still is confident in other forms of legal protection. The “Harvard mouse” was rejected by Canada as a patentable thing as, amazing as this fact might be, its a higher life form and not an invention. The Supreme Court of Canada in its ruling in Harvard College v. Canada (Commissioner of Patents), 2002 SCC 76 makes some great statements about the limits of our patent law, including:

The fact that animal life forms have numerous unique qualities that transcend the particular matter of which they are composed makes it difficult to conceptualize higher life forms as mere “composition[s] of matter”. It is a phrase that seems inadequate as a description of a higher life form.

Another example of exclusions from patenting comes in the location of our intellectual property law protections for software programming. It falls under our copyright law not the Patents Act. One of the great things about this is that the expression of an idea in is protected, not the unique useful functional capabilities of the code as must be shown in a patent case. Software code, being textual instructions which also function, benefit from this as the means to perform tasks are subject to intellectual property protection without going through the expensive, public and time-consuming process of applying for a patent. As a democratizer, it is pretty snazzy, too.

The prospect of a world tied up by US patent claims can be less frightening to Canadians who, for now, can rely upon the good sense of both Parliament and the Supreme Court to keep the stuff that shouldn’t be patentable out of our Patents Act – good news for both higher life forms and software programmers.