On November 15, 2010, the Attorney General of Canada filed a Notice (PDF) that the AG will seek appeal of last month’s ruling by Canada’s Federal Court that Amazon’s 1-click shopping idea could be patented.

Mr. Justice Phelan of the Canadian Federal Court reasons that care must be taken to apply foreign law to Canadian law. From paragraph [33] of the opinion, Justice Phelan notes that, for policy reasons, the European statute places restrictions on allowable patent subject matter:  “[t]he following . . . shall not be regarded as inventions . . . [including] mathematical methods; aesthetic creations; schemes, rules and methods for performing mental acts . . . [and] doing business, and programs for computers.” However, Canada has no such statutorily mandated exceptions, and Canada has different policies than the EU (EEUU).

Mr. Justice Phelan finds that the 1982 Shell Oil decision (Shell Oil Co. of Canada v. Canada (Commissioner of Patents), [1982] 2 S.C.R. 536) is controlling and provides a more expansive allowance for patentable subject matter in Canada than found in Europe.

Under de novo review, the Justice finds that the claims are directed to a “machine” and an “art” which is a “practical application of the one-click concept, put into action through the use of cookies, computers, the internet and the customer’s own action.” Further, the Justice finds that there is no exclusion for “’business methods’ . . . which are otherwise patentable, nor is there a ‘technological’ test in Canadian jurisprudence.”

The Notice of Appeal indicates that the interpretation of “invention” in section 2 of the Canadian Patent Act, R.S.C. 1985, c. P-4, should be viewed as only allowing “processes” that perform acts on “some physical object” or produce “in such object some change either of character or condition.”

It will be important to watch for the final disposition of this case because this One-Click patent is Canada’s Bilski case, a reference to a recent U.S. Supreme Court opinion allowing for an expansive interpretation of patentable subject matter under U.S. law. This Canadian case has been pending since Amazon filed its U.S. patent application all the way back in 1998.