Osgoode Hall Review of Law and Policy

Document Type


English Abstract

There has been ongoing international debate regarding the patentability of software for at least 15 years. Despite being bound by international laws, which deal directly with the patentability of software (TRIPS), individual countries continue to justify vastly different legislative and practical patent regimes in this field of innovation. In a very traditional and conservative fashion Canada has placed itself carefully on the fence in this debate adopting an approach which falls somewhere between that of the U.S. and Europe, providing little practical guidance for businesses, lawyers or software developers in the industry. This paper seeks to establish an approach, solution and justification for the correction of these problems. Discussion in the area of software patents is often based substantially around patent law theory and statistical analysis. Such approaches disregard the context in which these laws operate. As a direct consequence the connection between software patents and innovation remains an area of substantial conjecture. As the basis for policy decisions this non-contextual approach leaves much to be desired. In Canada this situation is amplified by the fact that few significant efforts have been made to study the legal effects of patents on the Canadian software sector. Recognizing the gap between theory and practice this paper seeks to marry the academic debate over software patentability with concrete Canadian perspectives from inside the industry. To this end primary research based on personal interviews with representatives from three software companies, with innovation offices in Canada, is used to shed a contextual, Canadian and practical light on U.S. and EU patent law theory. The trend which emerged from these interviews was that Canadian software companies generally find software patents detrimental to their business objectives. Given the small sample size, confirmation of this trend within the broader Canadian software industry is not possible and further research is required in order to substantiate this papers recommendations. However, assuming that the software companies interviewed are representative of the Canadian software industry then the detrimental trend identified aligns the Canadian software industry with non-innovation theories of software patentability. This allows the paper to justifiably conclude that Canada should not extend patentability to software or in the alternative that a carefully considered extension of patent law which responds systemically to the unique needs of the software industry and other emerging technologies may be appropriate. Most importantly the paper stresses the practical importance of active contextual research during the development of clear and strong guidelines related to the patentability of software in Canada.