Canada (Attorney General) v. Benjamin Moore & Co., 2022 FCA 194
Justice Rennie - 2022-11-10
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Benjamin Moore & Co. appealed two decisions from the Commissioner of Patents to the Federal Court (2022 FC 923, per Gagné A.C.J.), arguing that the Commissioner applied the wrong test to the question of what constitutes patentable subject matter. It asked the Federal Court to send its patent applications back to the Commissioner for reconsideration with a direction that the Commissioner use the test for patentable subject matter suggested by an intervener in the appeal, IPIC. ... The essential nature of this appeal is to challenge the substantive question of how the Commissioner is to determine whether a particular subject matter is patentable; paragraph 3 of the Federal Court’s judgment is a specific direction in this respect, akin to a declaratory judgment. ... the specific direction in paragraph 3 forms part of the judgment and uniquely binds the Commissioner to a particular test in a way that the reasons alone do not. This test responds to the only substantive consideration that was before the Federal Court, laying at the core of the Federal Court’s formal judgment in the matter. I conclude that the appeal is accordingly within this Court’s jurisdiction under subsection 27(1) of the Act.
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