Patentability of Business Methods in Canada and the United States: the Current Situation

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After much anticipation, the U.S. Supreme Court handed down the decision in the case of Bilski v. Kappos on June 28, 2010. The decision has wide-ranging implications for the patentability of business methods in the U.S., chief among which are that business methods are not barred from patentability per se, although they still appear difficult to obtain. The U.S. Supreme Court also stated that the so-called “machine or transformation” test, which was previously being used by patent examiners at the USPTO, although useful, is not the sole test for determining patentability. The “machine or transformation” test states that a patent claim must be tied to a particular machine or transform an article from one state to another, the article being, roughly, a physical object or possibly a signal representative of a physical object.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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