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Lametti, D. (2020). Destination. McGill Law Journal, 66(1), 47–51. https://doi.org/10.7202/1082037ar
An article from McGill Law Journal / Revue de droit de McGill, on Érudit.
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Un article de la revue Revue du notariat, diffusée par la plateforme Érudit.
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La Disposition pre1iminaire du Code civil du Qu6bec Alain-Frangois Bisson” A tous les codificateurs ou recodificateurs, la ques- tion se pose de savoir s’il convient de gouvemer le sens de l’ceuvre codificatrice par le recours Zi des dispositions gdnd- rales ou prdliminaires organisatrices et orienteuses du sys- tame. Le codificateur qudbdcois de 1991 a choisi … Continued
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In Canada, like the USA, exclusions to patentable subject matter are driven primarily by the courts. Two recent decisions by the Canadian Patent Appeal Board (one on patentability of business methods and the other on the patentability of methods of medical treatment) have highlighted the inherent difficulty of crafting exclusions to patentable subject matter grounded not on legislative intent but on judicial activism.Courts, patent examiners, and the patent appeal board should be slow to deny patents where their subject matter is considered ineligible; rather patent applications should be assessed by the traditional criteria of patentability (namely, novelty, inventiveness, and utility). If the subject matter can be made to fit within the definition of ‘invention’ (even if slightly uncomfortably), the courts should aim to ‘breathe life’ into the bare, sometimes dated, words of the patent statute. Since the patent statutes are drafted with a view to the unforeseen, any judicial interpretation of the word ‘invention’ must give deference to this vision. A theory of subject-matter eligibility is also proposed.
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“No one has advanced a just and logical reason why reward for service to the public should be extended to the inventor of a mechanical toy and denied to the genius whose patience, foresight, and effort have given a valuable new [discovery] to mankind” (Katopis CJ. Patents v patents: policy implications of recent patent legislation. St John’s Law Review 1997;71:329). The law around the world permits the granting of patents for drugs, medical devices, and cosmetic treatment of the human body. At the same time, patentability for a method of treatment of the same body is denied in some countries on various public policy grounds. Is there any logical justification for this distinction? Are methods of medical treatment not as vital to the health or even to the life of a patient as drugs or medical devices? Why is a cosmetic result patentable and a curative result not?
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