Patents

2. Are All Inventions Patentable?

(c) Utility

To be patentable, an invention must have a useful purpose recognized by the Patent Act. Accordingly, frivolous inventions are not patentable. Traditionally, patent applications for games have been rejected (particularly under Canadian and British law) as lacking the requisite utility for patentability. However, more recently, many games have been patented, particularly in the United States, sometimes as patented processes.

Utility means usefulness that is beneficial to the public in some recognizable way. The true test of utility is whether the invention disclosed in the patent application, when practised by a person skilled in the relevant field, will do what it is supposed to do, as stated in the patent. The invention need not have defined commercial value, nor be superior to other means for achieving the same or similar purposes to be patentable. Superiority, however, may help show that an invention has utility and is unobvious (see the next section on Unobviousness).

To possess utility, an invention must be reproducible in a consistent manner, and not be dependant to any significant degree upon the individual skill of the person practising the invention. Thus, for example, (and quite apart from the specific statutory provisions prohibiting such patenting on policy grounds) medical or surgical procedures would likely not be patentable, as lacking utility.