The Federal Court in examination guidance in light of this (2020 FC 837) found that CIPO’s problem and solution framed “purposive construction” was inconsistent with the principles set forth by the Supreme Court of Canada. CIPO has now issued decision. The updated guidance will be applied effective immediately to applications currently in prosecution as well as those presently before the Patent Appeal Board.
We believe that this is a positive development and recommend a reassessment of cases that were impacted by CIPO’s incorrect past position. For more background information, please see our previous article.