On March 5, 2018, the Canadian Patent Appeal Board, in decision number 1448 regarding an application entitled “Video content navigation with revenue maximization”, recommended that the application be refused on the basis that the claims in the application did not define statutory subject matter, contrary to section 2 of the Patent Act.

The application related to video-on-demand (VOD) content navigation, particularly to the sorting of content so as to maximize revenue for a service provider.  In reviewing the application, the Board was tasked with identifying the essential elements of the claims to determine whether they complied with the requirements of the Patent Act.

The applicant contended that the essential elements of each claim included physical elements by virtue of the claims being explicitly or implicitly tied to a VOD method and system and its production of a tangible physical result (ie the physical display of VOD content items on the user interface). The patent examiner, in his final action, disagreed. According to the examiner, the described physical components and steps simply formed part of the working environment and were not to be construed as essential elements of the claims. The Board concurred with the examiner, finding that it was solely the steps and rules of the sorting algorithm that were the essential elements of the claimed invention.  Since steps and rules are considered to be abstract and not patentable subject matter, the Board recommended that the application be refused and the Commissioner concurred.

Summary By: Jae Morris


18 05 30

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