29:
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on the method of use of the pharmaceutical (i.e. a patient taking the pill), and a patent on the diagnostic kit for use of the product. In particular, an invention directed towards the treatment of disease is patentable, since there is no removal of the need for professional skill and judgment, and the invention deals with an economic area related to trade, commerce or industry.
140:
The
Supreme Court concluded that methods of medical treatment are not contemplated in the definition of invention as a kind of "process". Section 41 of the Patent Act restricted the scope of patents “relating to substances prepared or produced by chemical processes and intended for food or medicine.”
162:
Although
Canadian jurisprudence has held that methods of medical treatment are unpatentable, many such claims can often be redrafted as “use” or “composition” claims, which have been found acceptable. For example, in Canada, an inventor may get a patent on a product (i.e. a pharmaceutical), a patent
149:
The decision was based on the former s. 41 of the Patent Act, R.S.C. 1970, c. P-4, now repealed. Even so, the overall conclusion made in
Tennessee Eastman (that methods of medical treatment are not patentable) has been upheld by the Federal Court of Appeal and cited with approval by the Supreme
124:
The
Commissioner of Patents refused to grant the patent on the ground that the claimed method was not the kind of discovery which fell within the definition of “invention” in the Patent Act. In particular, it was not an “art” because it was useful only in the process of surgical treatment and
153:
The current rationale for rejecting claims for methods of medical treatment is that enunciated by the
Commission of Patents in this decision. A method that is essentially non-economic and unrelated to trade, industry, or commerce, and instead relates to an area of professional skills, is
131:
appealed to the
Exchequer Court. The issue there was whether this use of glue fell within the meaning of new and useful “art” or “process” within the meaning of the Patent Act. The Exchequer Court held that it did not for the reasons given by the Commissioner of Patents.
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Specifically, the patent application claimed, in part: "The method for surgical bonding of body tissues which comprises applying to at least one of the tissue surfaces to be bonded an adhesive composition comprising a monomeric ester of a-cyanoacrylic acid ...
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sought a patent for a surgical method for bonding a wound together by applying certain glues. The glues themselves were not new. The new discovery was that the glues could be used in place of stitches to close wounds.
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This implied that, with respect to such substances, a medical or therapeutic use cannot be claimed by a process claim apart from the substance itself.
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Fauteux C.J., Abbott J., Judson J., and Spence J. took no part in the consideration or decision of the case.
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authority for the proposition that medical or therapeutic methods are not patentable in Canada.
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299:
50:
178:
List of
Supreme Court of Canada cases (Richards Court through Fauteux Court)
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produced no result in relation to trade, commerce or industry.
239:
Imperial
Chemical Industries Ltd. v. Commissioner of Patents
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Tennessee
Eastman Co v Canada (Commissioner of Patents)
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Tennessee
Eastman Co v Canada (Commissioner of Patents)
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75:
67:
59:
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42:
21:
8:
266:Shell Oil Co. v. Commissioner of Patents
286:Apotex Inc. v. Wellcome Foundation Ltd.
272:Apotex Inc. v. Wellcome Foundation Ltd.
252:Apotex Inc. v. Wellcome Foundation Ltd.
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210:
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173:Subject matter in Canadian patent law
7:
14:
27:
1:
306:Supreme Court of Canada cases
158:Circumventing the prohibition
105:, S.C.R. 111, is a leading
16:Supreme Court of Canada case
45:Judgment: December 22, 1972
43:Hearing: May 2 and 3, 1972
332:
316:1972 in Canadian case law
93:
26:
311:Canadian patent case law
191:Supreme Court of Canada
107:Supreme Court of Canada
35:Supreme Court of Canada
145:Post Tennessee Eastman
241:, 3 F.C. 40 (F.C.A.)
269:, 2 S.C.R. 536 and
136:Reasons of the Court
86:Unanimous reasons by
150:Court of Canada.
129:Tennessee Eastman
118:Tennessee Eastman
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76:Court membership
71:Appeal Dismissed
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289:, 4 S.C.R. 153
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184:External links
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154:unpatentable.
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189:Full text of
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300:Categories
226:References
113:Background
55:S.C.R. 111
89:Pigeon J.
51:Citations
167:See also
199:CanLII
68:Ruling
205:Notes
195:LexUM
197:and
63:none
302::
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