You’ve built something genuinely new — a clever algorithm, an AI pipeline, a piece of software that does what nothing else does. Now you’re wondering: can I patent my software in Canada?
The short answer: yes, some software can be patentable in Canada. Whether your software qualifies for patent protection depends less on what your code does and more on where the invention actually lies. This guide walks through how Canadian patent law treats software, what the courts and the Canadian Intellectual Property Office (CIPO) look for, and how to think about your own patent application.
The starting point for every patent is the Patent Act. Section 2 defines an invention as:
“any new and useful art, process, machine, manufacture or composition of matter, or any new and useful improvement in any art, process, machine, manufacture or composition of matter”
Notice what’s missing: the words “software,” “computer,” and “algorithm” appear nowhere in the Patent Act. Software inventions aren’t banned from patenting — but they aren’t automatically patentable either. Software usually gets framed as a process or a machine. To be patentable, your software invention has to genuinely fit one of those statutory categories.
There’s one more critical rule. Section 27(8) of the Patent Act says:
“No patent shall be granted for any mere scientific principle or abstract theorem.”
This sentence is the source of many fights over software patents in Canada. An algorithm, by itself, is treated as an abstract theorem — essentially math. And you can’t patent math.
A foundational software patent case in Canada is Schlumberger Canada Ltd v Commissioner of Patents, 1981 CanLII 4644 (FCA). Schlumberger tried to patent a method of processing seismic data with a computer to produce useful output. The Federal Court of Appeal said no. Running a new formula on an ordinary computer didn’t transform unpatentable math into a patentable invention.
That principle still controls today. Decades later, in Canada (Attorney General) v Amazon.com, Inc, 2011 FCA 328 — the famous “one-click” patent case — the Federal Court of Appeal confirmed it:
“The claims in Schlumberger were not saved by the fact that they contemplated the use of a physical tool, a computer, to give the novel mathematical formula a practical application.”
The developer’s translation: if the only new thing in your patent claim is the algorithm, bolting it onto a generic computer won’t make it patentable. “Do X, but on a computer” is not an invention under Canadian patent law.
But the Amazon case also delivered good news. The court refused to declare business methods or computer-implemented inventions unpatentable as a class. Amazon’s one-click patent was ultimately granted in Canada. The door for software patents is open — you just have to walk through it the right way.
Two recent developments reshaped how the patent office examines software.
First: Choueifaty killed the “problem-solution” test. For years, CIPO examiners stripped the computer out of software claims by labelling it non-essential, then rejected what remained as abstract. In Choueifaty v Canada (Attorney General), 2020 FC 837, the Federal Court held this was wrong: claims must be read using purposive construction — the same approach used for every other patent.
Second: Benjamin Moore told examiners to keep an open mind. In Canada (Attorney General) v Benjamin Moore & Co, 2023 FCA 168, the Federal Court of Appeal struck down a rigid test for computer-implemented inventions and cautioned that:
“the Commissioner should keep an open mind and not hastily conclude that the subject matter claimed is not patentable simply because it involves the use of conventional computer technology”
CIPO has since proposed updates to its examination manual specifically addressing machine learning and AI inventions — so if you’re building AI software, this area of patent law is evolving in real time.
When a patent examiner (or a court) looks at your software, the decisive question is: what is actually new here?
Practitioners tracking post-Benjamin Moore examination report that showing your software achieves a result in a more computer-efficient way than the prior art is one of the most effective ways to overcome subject-matter rejections. If you can honestly say “my software improves the functioning of the computer,” your patent prospects improve dramatically.
Patentable subject matter is only the first gate. Your software invention must also be novel, non-obvious, and useful.
One trap developers fall into constantly: shipping, demoing, or open-sourcing before filing. Public disclosure can destroy patent rights, especially outside Canada. If a patent matters to you, talk to a patent professional before you launch.
Copyright automatically protects your source code from copying — no registration required. Trade secret protection can cover algorithms you keep confidential. A patent is the right tool when the functional idea — the method, the process, the system — is the valuable thing.
This information is for education and entertainment purposes only. It is not intended to be legal, business, or other professional advice to be relied on. Do not make or refrain from any decisions on the basis of this information. Please contact us to receive advice from a qualified lawyer. View our Terms of Service for more information.