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From Nick Toth; Subject Comments on draft MOPOP Chapters 12_13

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From Nick Toth; Subject Comments on draft MOPOP Chapters 12_13 Powered By Docstoc
					From Nick Toth;
Subject Comments on draft MOPOP Chapters 12&13;
Message The draft Chapters 12 and 13 as they currently stand should not be implemented until after a
final resolution of the Re Amazon.com Inc Patent Application No 2,246,933 (Commissioner's Decision 1290,
March 4 2009) case has been determined by the courts or all deadlines for appeals have passed.

It is clear these draft Chapters are an attempt by the CIPO to introduce new legal requirements for
patentability for which there is, at this time, no statutory or judicial authority.

For example, there is no legal authority for the form and substance approach to determining whether a
claim recites patentable subject matter. Section 27(4) of the Patent Act provides that the claim or claims
define, distinctly and in explicit terms, the subject matter of the invention. Where a claim distinctly and in
explicit terms defines something, that something is the subject matter of the invention. Thus, the patent
office is bound by the Patent Act to consider the entirety of the subject matter of a claim in determining
whether such subject matter is statutory subject matter. There is no legal authority for the patent office to
determine whether a claim defines patentable subject matter on the basis only of selected discrete elements
forming a subset of the subject matter of the claim, as indicated by the form and substance approach of
these draft Chapters.

Furthermore, business methods are not excluded from patentability under current patent law in Canada.
There is no legal authority for excluding non-technological subject matter from patentability.

There is no legal authority in Canada for the statements of section 12.045.04 of the draft Chapter 12. The
Office Practice Regarding Signals (C.P.O.R. Vol. 135, No. 33, August 14, 2007), is not statutory authority
and is not judicial authority.

One would have thought that the CIPO would have learned from the fiasco of the Dutch Industries case to
follow the Patent Act and established judicial authority, rather than attempting to create its own patent laws
contrary to the Patent Act and the judiciary.

Sincerely,
Nick Toth

P.S. In section 12.06.08, 1st paragraph, the following sentence appears to have a typing error: In the case
of a use, the result is achieved by the application a particular means. In section 12.06.08, 3rd paragraph,
readability may be enhanced by separating the following sentence into multiple sentences: From the
foregoing, it can be appreciated that where, having been told the circumstances in which the use is to be
practised, what means are to be used, and what result is to be achieved, the implementation is not known or
obvious to the person skilled in the art, the use is not enabled.

				
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