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Protecting software patents in Canada and the US; Similarities and differences

Disclaimer: The information provided in this factsheet is meant as an educational resource only and should not be construed as legal advice.

  1. Patenting software
    • Patenting software in both Canada and the US can be complex: software patents in Canada and the United States face similar prosecution hurdles in the form of “Abstract Ideas” rejections.
      • It is typically harder to overcome this rejection in Canada than in the US.
    • Methods to avoid or overcome this type of rejection include:
      • Highlighting the utility/ functionality of the software - what technical problem is the software solving?
      • Tying the functionality of the software to the structural parts of the components that run the software:
        • For example, including the term “computer-implemented” in a patent claim is a common method for framing the software claims to highlight the invention’s role in acting on a physical element of a computer.
        • The “computer-implemented” inventions typically consist of machines that depend on computers for operation and a product or method of manufacture, process or art.
      • Describing how the software is a useful improvement on existing process and systems. For example, detailing improvements to the process or overall system in the form of speed and/or memory usage in data structures, computer programs and computer-generated signals.
      • Ensuring that the output is presented as repeatable and not based on human judgement.
    • Patenting software is desirable in circumstances where source code and object code are made available and can be rewritten or reverse engineered.

Example 1: You have invented an application comprising software that records and displays restaurants’ locations, menus, and ratings. You decide to file a patent because the method of recording and displaying the data is much faster and better than others that currently exist, and because if you sold your application on an App store, your competitors could probably figure out the code that you used and develop their own application.

  1. Copyrighting software
    • Software protection can be in the form of source code and object code that underlies all software as the instruction to execute the software.
    • The source code and object code are protected under copyright law as literary works due to the creative nature of writing and running a code.
    • Copyright law in Canada and the United States are equivalent in that both:
      • Offer automatic protection once a work has been completed and published and is enforceable during the duration of the author’s lifetime as well as 70 years after the death of the author.
      • Offer exceptions for archives and libraries for preservation and educational purposes among others.
    • You can license your copyrighted software to others, at cost or for free, if you want to share it with the public
    • Orphan Works: allows an individual to apply for a license from the Copyright board of Canada to license works where the author is not identifiable or locatable.
      • Not applicable in the US.
  2. Trade secrets:
    • Software protection can be in the form of a trade secret through the secrecy of the functionality of the software.
    • Keeping software as a trade secret is important in circumstances where source code and object code aren’t available and can’t be easily rewritten or the functionality is not clearly or legally reverse engineerable.
    • The software trade secret protection is enforceable only as long as the software trade secret isn’t publicly available.
    • Protecting software with trade secrets requires stringent cybersecurity and employee knowledge of the risks involved is leaking the details of the trade secret.

Key considerations for Canadian companies:

Additional information:

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