Progressive Games, Inc. v. Canada ( Commissioner of Patents )
T-439-98
Denault J.
22/10/99
13 pp.
Appeal from Commissioner of Patents' decision refusing to grant appellant's application for "Poker Game" patent-Commissioner dismissed appeal from Examiner's refusal to grant patent as found that in carrying out appellant's method, no change in character or condition of any material objects (abstract idea directed to means of playing game)-Commissioner concluded application directed towards subject matter not patentable under Act, s. 2 as methods set forth in claims not directed to either "art" or "process" as contemplated therein-Issue on appeal whether or not appellant's changes in method of playing poker falling within definition of "art" or "process" in Act, s. 2-Appeal dismissed-Definition of "art" as provided by Supreme Court of Canada in Shell Oil Co. v. Commissioner of Patents, [1982] 2 S.C.R. 536 and Tennessee Eastman Co. et al. v. Commissioner of Patents, [1974] S.C.R. 111 including process that is not disembodied idea but has method of practical application; new and innovative method of applying skill and knowledge; and has commercially useful result or effect-Commissioner failed to apply adequate test as did not consider S.C.C. definition-However, applying S.C.C. test, appellant's method not conforming to method of applying skill or knowledge as described by S.C.C. in Shell Oil-Appellant's changes in method of playing poker not contribution or addition to cumulative wisdom on subject of games-Those changes not referring to "learning" or "knowledge" as commonly used in expressions such as "state of the art" or "prior art"-Appellant's changes in method of playing poker neither substantially modifying existing poker game nor creating new game-Patent Act, R.S.C., 1985, c. P-4, s. 2 "invention".