According to « AMAZON.COM, INC. vs THE ATTORNEY GENERAL OF CANADA, and THE COMMISSIONER OF PATENTS« :

“[61] There is no basis for the Commissioner’s assumption that there is a “tradition” of excluding

business methods from patentability in Canada. The only Canadian jurisprudence cited was made as

obiter and in dissent by Arbour J. in Schmeiser.”

“[69] The Commissioner’s decision introduced one more novel and unnecessary requirement for

patentability into the Canadian patent regime: the technical or technological requirement. She also

suggests that “new and useful knowledge” must be “scientific or technological” in order to

constitute a patentable art. Thus, according to this reasoning, one must now assess whether an

invention – and specifically what has been added to human knowledge – is technological in nature.”

“[70] In fairness, in this instance the Commissioner does glean some of her rationale from the

language in the Patent Rules and Canadian jurisprudence, but this does not translate into an

endorsement or imposition of a “technical test”. There is no reference to such a test in the Canadian

jurisprudence (or none was advanced in this Court). It was not within the Commissioner’s

jurisdiction to introduce one. Once again, the Commissioner’s heavy reliance on the “technical

contribution approach” as discussed in the UK did not correspond with the reality of our Patent Act

or recognize the range of opinions as to its application and appropriateness…”

With regards to the specific Amazon patent application, Amazon’s invention qualified under s. 2 because (1) the system claims require a machine as an essential element of the invention and (2) the method claims are “put the into action through the use of cookies, computers, the internet and the customer’s own action” and results in a “physical effect” on those elements.

Voici, Ă  titre de rĂ©fĂ©rence, une copie de l’article de la Loi amĂ©ricaine sur les brevets suivant l’American Inventor Act dĂ©finissant la nouveautĂ©.

Sec. 102. Conditions for patentability; novelty

(a) Novelty; Prior Art- A person shall be entitled to a patent unless—

1. the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention; or

2. the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.

(b) Exceptions-

1. DISCLOSURES MADE 1 YEAR OR LESS BEFORE THE EFFECTIVE FILING DATE OF THE CLAIMED INVENTION- A disclosure made 1 year or less before the effective filing date of a claimed invention shall not be prior art to the claimed invention under subsection (a)(1) if—

A. the disclosure was made by the inventor or joint inventor or by another who obtained the subject matter disclosed directly or indirectly from the inventor or a joint inventor; or

B. the subject matter disclosed had, before such disclosure, been publicly disclosed by the inventor or a joint inventor or another who obtained the subject matter disclosed directly or indirectly from the inventor or a joint inventor.

2. DISCLOSURES APPEARING IN APPLICATIONS AND PATENTS- A disclosure shall not be prior art to a claimed invention under subsection (a)(2) if–

A. the subject matter disclosed was obtained directly or indirectly from the inventor or a joint inventor;

B. the subject matter disclosed had, before such subject matter was effectively filed under subsection (a)(2), been publicly disclosed by the inventor or a joint inventor or another who obtained the subject matter disclosed directly or indirectly from the inventor or a joint inventor; or

C. the subject matter disclosed and the claimed invention, not later than the effective filing date of the claimed invention, were owned by the same person or subject to an obligation of assignment to the same person.

(c) {CREATE ACT Save for later}

(d) Patents and Published Applications Effective as Prior Art- For purposes of determining whether a patent or application for patent is prior art to a claimed invention under subsection (a)(2), such patent or application shall be considered to have been effectively filed, with respect to any subject matter described in the patent or application—

1. if paragraph (2) does not apply, as of the actual filing date of the patent or the application for patent; or

2. if the patent or application for patent is entitled to claim a right of priority under section 119, 365(a), or 365(b), or to claim the benefit of an earlier filing date under section 120, 121, or 365(c), based upon 1 or more prior filed applications for patent, as of the filing date of the earliest such application that describes the subject matter.’.