Recently, a practice notice released by the Canadian Intellectual Property Office (CIPO) revised its examination approach regarding patentable subject matter.

The practice notice states that inside Chapters 12, 17, 18, 22, and 23 of the Manual of Patent Office Practice (MOPOP), content concerning the "contribution" of a claim, a "technical solution to a technical problem," and the assessment of the essentiality of elements based on a "problem and solution" during purposive construction is no longer applicable.

The removal of the expression "problem and solution" from the Manual of Patent Office Practice is a welcome step in the right direction, as courts have repeatedly found that CIPO's construction of claims was skewed when following its "problem-solution" approach.

In addition, CIPO has also updated its examination guidelines regarding computer-implemented inventions, medical diagnostic methods, medical uses, and games.

Regarding games, CIPO's provision prohibiting gameplay from being considered patentable subject matter has been repealed.

Regarding medical diagnostic methods, CIPO has established guidance on what type of diagnostic methods it will consider to possess patentability:

"Where, as construed, the subject-matter of a diagnostic method claim includes an element that is a physical step, for example a step for measuring, identifying, detecting, determining, etc., the presence or quantity of one or more analytes in a sample, the claim will be considered to be patentable subject matter."

Regarding "medical uses," CIPO notes that the key consideration is "whether the use of the invention requires professional skill and judgment." If skill and judgment are not required, then the medical use may possess patentability. CIPO points out that a fixed dosage regimen is one manifestation that does not require skill or judgment, and therefore such claims may be patentable subject matter.

It is worth noting that the Supreme Court of Canada is currently deliberating on the question of whether methods of medical treatment possess patentability, and the court's judgment may lead to changes in this area of law.