5.3 Canada

Harvard Mouse

In 1985, Harvard College filed a Canadian patent application entitled “transgenic animals” (CA1341442), which tried to claim genetically mice for medical studies. The Commissioner rejected the application on the basis that it is directed to non-patentable subject matter because it tried to patent higher life form. The Applicant appealed. The legal process continued until it reached the Supreme Court of Canada (Harvard College v. Canada (Commissioner of Patents), 2002 SCC 76).  The SCC’s decision stating that higher life-form is not patentable in Canada. As a result, the patent CA1341442 was allowed without the composition of matter claims.

In the US, a patent application was allowed entitled “Transgenic Non-human Mammals” (US4736866) that claimed “a transgenic non-human mammal”.


Amazon “One Click” case

In 1997, Amazon filed a US patent application “A method and System for Placing a Purchase Order Via a Communications Network” featuring using cookies to remember user payment data to facilitate a “one-click” shopping experience. In September 1999, a US patent was granted (US5960411).

In 1998, Amazon filed a Canadian patent application for the same invention (CA2246933). It was rejected by the Commissioner of Patents on the ground that the invention is directed to non-patentable subject matter. Amazon appealed to the Federal Court of Canada (Amazon.com, Inc. v Canada, 2010 FC 1011).


The appeal was allowed, and the commissioner’s decision was quashed and was to be sent back for re-examination. The Commissioner appealed to the Federal Court of Appeal (Canada v Amazon.com, Inc, 2011 FCA 328). The appeal was allowed, the judgement of the Federal Court was set aside, and the case was sent back to the commissioner for re-examination. The application was allowed after the FCA decision. The decision of FCA patent application states that a business method is not per se unpatentable and applications should be examined using purposive construction. However, the FCA did not give clear instructions/tests regarding the patentability of business methods.


The US patent expired in September 2017.

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