All In: Federal Court Sets Aside Commissioner’s Rejection Of Card Game Patent

On November 12, 2025, the Federal Court (the Court) issued its decision in Dusome v Canada (Attorney General), 2025 FC 1809, allowing Barry Dusome and Wyatt Dusome’s (collectively, the Appellants’) judicial review of a decision of the Commissioner of Patents (the Commissioner) that refused Canadian Patent Application Number 2,701,028 for a method of playing a wagering poker game either with conventional physical cards or a computerized system (the 028 Application).

The Commissioner refused the 028 Application on the grounds that the claimed invention did not meet the definition of “invention” under section 2 of the Patent Act and constituted excluded subject-matter contrary to subsection 27(8). The Appellants sought judicial review of this decision with the Court.

In reviewing the matter, the Court found that the Commissioner committed four key errors:

1. The Commissioner failed to properly construe the claims of the 028 Application and, instead, reached the conclusion that all claim elements were essential without providing justification.
2. The Commissioner failed to properly assess the subject-matter patentability of the claims, as subject-matter patentability must be based on a proper purposive construction of the claims.
3. The Commissioner erred in his assessment of the “actual invention.” The Commissioner nonetheless found that, because the physical elements of the invention (like playing cards) were not novel, they didn’t form a part of the “actual invention.” The Commissioner took a similar position for claims that implemented the poker game on a computer, saying that “….the operation of the computer system is generic in this case. Making use of common general knowledge programming and a computer system is not part of the actual invention of these claims.” This led the Commissioner to strip away all physical elements of the invention and refuse the 028 Application for comprising an unpatentable “abstract algorithm” that lacks requisite physicality. However, the Court held this approach was incorrect, warning that the Commissioner’s approach would fail to recognize certain types of inventions, such as those that claim the discovery of new properties, uses or methods through the combination of a number of elements where some are old. The Court also cautioned that the Commissioner must keep an open mind and not hastily conclude claimed subject-matter is not patentable because it involves the use of conventional computer technology.
4. The Commissioner had applied an improper definition of patentable “art”. 

As a result of the above errors, the Court set aside the Commissioner’s decision and remitted the 028 Application for re-examination.

Summary By: Claire Bettio