Dusome v. Canada (Attorney General), 2025 FC 1809
Justice Whyte Nowak - 2025-11-12
Read full decision. Automatically generated summary:
the Commissioner of Patents [refused] their application for a patent for a “Method of Playing a Card Game” [see 2024 CACP 11] ... The Commissioner refused the 028 Application on the basis that the actual invention claimed did not meet the definition of “invention” under section 2 of the Patent Act and claimed excluded subject-matter contrary to subsection 27(8) of the Patent Act. ... For the reasons that follow, I find that the Commissioner’s Decision contains errors of law that warrant this Court’s intervention. The 028 Application shall therefore be remitted back to the Commissioner for re-examination on an expedited basis. ... The Commissioner’s failure to ground his determination of the actual invention of the 028 Application in a purposive construction of the claims was intentional: the Commissioner stated in the Decision that, “[w]hile there is no second step to purposive construction, the courts have not ruled it impermissible to determine the actual invention as distinct from the essential elements of the construed claims.” This is contrary to Amazon and is an error of law. ... I agree with the Appellants’ submission that the Commissioner committed an error of law in conducting his assessment of subject-matter patentability based on what the Commissioner considered to be the actual invention of the 028 Application. ... Once the claims of the 028 Application are purposively construed, the Commissioner will need to take into account the nature of the discovery claimed and consider whether the subject-matter defined by the claims meets the definition of patentable “art” as defined in Shell Oil, which asks whether the claims of the 028 Application add new knowledge to affect a desired result which has commercial value.
Decision relates to:
- T-1651-24 - BARRY DUSOME ET AL. v. AGC ET AL.