Abstract
dc:description.abstractThe Canadian jurisprudence relating to subject-matter patentability has developed errors that are inconsistent with over a century of comparatively stable interpretation of s. 27(8) of the Patent Act. The errors are the adoption of a physicality requirement and an approach to identifying the bar against mere scientific principles and abstract theorems that discounts the actual implementation of the invention and focuses instead on the form of the invention by looking for physical components or effects. This approach also is characterized by the failure to separately consider the issues of the bar against mere scientific principles, obviousness, indefiniteness, overbreadth/lack of support and meeting the definition of invention. The historical development of s. 27(8) and s. 2 of the Patent Act is analyzed and the origins of these errors are discussed, including a review of the most recent relevant jurisprudence. A more correct and concise approach to determining subject matter patentability would evaluate s. 27(8), after purposive construction, purely on the basis of whether the invention as claimed recites a well-defined application and specific implementation of the scientific principle or abstract theorem. A more correct determination of whether a claimed invention meets the definition set out in s. 2 would identify whether, after purposive construction, the invention has a utilitarian application for the benefit of humanity that does not fall within the liberal arts or another judicial exception. Separately from these determinations, and in no particular order, the other requirements for patentability may also be considered.
Degree
thesis:*- Name thesis:degree_name
- Master of Laws (LLM)
- Discipline thesis:degree_discipline
- Law
- Grantor dc:publisher.institution
- Graduate Studies
- Year dc:date.issued
- 2025
Author and committee
dc:creator, dc:contributor.*- Author dc:creator
-
- Lambert, John
- Advisor dc:contributor.advisor
-
- Hagen, Gregory
- Committee members dc:contributor.committeemember
-
- Hagen, Gregory
- Laidlaw, Emily
- Ilg, Michael
Subjects
dc:subject × 2Rights
dc:rights- Statement dc:rights
-
- University of Calgary graduate students retain copyright ownership and moral rights for their thesis. You may use this material in any way that is permitted by the Copyright Act or through licensing that has been assigned to the document. For uses that are not allowable under copyright legislation or licensing, you are required to seek permission.
- Language dc:language.iso
- en
Identifiers
dc:identifier.*- OAI identifier oai:identifier
- oai:ucalgary.scholaris.ca:1880/120516