On May 25, 2018, in Safe Gaming System v Atlantic Lottery Corporation, 2018 FC 542, Justice McVeigh for the Federal Court of Canada found that the claims of CA 2,331,238 (‘238) were invalid for lack of utility and for insufficiency. Justice McVeigh also noted that even if the ‘238 Patent had been valid, the defendant’s system did not infringe the patent.
Justice McVeigh found that the subject matter of the ‘238 Patent was a gaming control system for problem gambling. Notably, Justice McVeigh’s utility analysis turned on her understanding of the Court’s statement in AstraZeneca Canada Inc v Apotex Inc, 2017 SCC 36 that utility must be related to the nature of the claimed subject-matter. The patentee had argued that the relevant utility was “monitoring, regulating, and terminating play of any individual”. However, the court rejected this and noted that the nature of the subject matter was to monitor behaviour to avoid problem gambling. Because the claimed method and disclosure of the patent did not teach the skilled person how to avoid problem gambling based on monitored behaviour, and the skilled person lacked the psychological tools to do so, Justice McVeigh found that utility was not demonstrated or soundly predicted. Accordingly, the ‘238 patent was found invalid.
Additional commentary is available here.
Summary By: Robert Dewald
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