Canadian Patent Appeal Board Rejects a Method of Treatment as Unpatentable Subject Matter

On November 16, 2015, the Canadian Patent Appeal Board in decision number 1383 regarding patent application number 2,476,327 entitled “Method of Administering An Injectable Antibiotic to the Ear of An Animal” recommended rejection the application on the basis that the claimed invention was directed to a method of medical treatment and therefore comprised non-statutory subject matter. The Board also found that the claimed invention would have been obvious to a person skilled in the art. The Commissioner adopted the Board’s recommendations and rejected the application.

In its reasons the Board stated that the skilled person would consider the step of injecting the antibiotic in an animal at a particular location, as specified in the claims, to be essential to the method of treating or preventing the bacterial infection. Further, the Board clarified that to be precluded from patentability, a method of medical treatment need not be practised by a physician. According to the Board, any method of medical treatment is precluded from being patented if it "cures or prevents disease".

In another decision (number 1388) released at the same time regarding patent application number 2,579,611 entitled “A Method of Delivery of a Healing Substance to a Target Place in Gastrointestinal Tract of Human or Animals”, the Board rejected the application for similar reasons. The Board stated that a patent claim for a method of medical treatment that requires a physician’s skill or judgment is not patentable in Canada. However, a claim for a method of medical treatment that does not require the skills of a physician does not necessarily comprise patentable subject matter.