Second, I am shocked by the Court of Appeal’s statement that it is not in a position to make a decision as to the patentability of the claims in issue in the case before it. If the Court of Appeal cannot apply the law to a clear set of facts before it (viz. the patent claims, in the context of the four corners of the application before it) so as to make an important legal decision on the patentability of those claims, then who can? The Supreme Court of Canada? Surely not a bureaucrat who lacks both the knowledge and jurisdiction to do so.

In essence (and even without considering the murky “linguistic doublespeak” of the judgment), the Court of Appeal has abdicated its responsibility to decide the law on the case before it, and instead has handed it to a bureaucrat to do so, without there being a single reason, or justification, to have done so. The Commissioner has no more information, and cannot obtain any more relevant information, than the Court had before it.

Alan