The Federal Court found that the Commissioner of Patents failed to follow the jurisprudence on determining patentable subject matter.
In the recent decision of Dusome v. Canada (Attorney General) 2025 FC 1809 (“Dusome”), which involved a patent application for a method of playing a poker game with physical cards or on a computerized system, the Federal Court found that the Commissioner of Patents committed a number of errors which include:
- failure to properly construe the claims even though the Commissioner correctly stated the law on purposive construction;
- improper assessment of subject-matter patentability based on what the Commissioner considered to be the “actual invention” of the application as this approach was explicitly rejected by the Federal Court of Appeal in com Inc v. Canada (Attorney General), 2011 FCA 328;
- improper approach and application of the “actual invention” question in that the Commissioner improperly stripped away all of the physical elements of the invention, leaving only the new knowledge added to the art of poker and thus explained why the Commissioner considered the actual invention to be rules for a game which lack physicality and therefore constitute excluded subject-matter; and
- improper approach to the assessment of patentable “art” under section 2 of the Patent Act.
Dusome is a reminder that if the Commissioner of Patents misapplies the law on subject matter eligibility for a patent application, appeals to the Federal Court are available.
In the end, the Federal Court remitted the patent application back to the Commissioner of Patents for reconsideration with regards to the question of subject matter eligibility.
Click here to read the full case.