As of October 14, 2010, the Supreme Court of Canada has upheld the patentability of business methods and processes, via its decision re: Amazon.com and it’s “one click” process. The question is … will this decision open new doors or opportunities for us to claim SR&ED? Or will it have a negative effect?
As the consequences of this decision become better understood, I wonder if we should anticipate a flood of similar patent filings, and downstream from that, an increase in the number of claimants who are hoping to claim SR&ED costs for the development of patented (or patent pending) processes?
In the past, the application for or granting of a patent has provided a degree of assurance about the presence of technological advancement in a project. It was, at the least, a strong indicator of SR&ED potential. As one of the side effects of this most recent decision, the technological focus underlying the patent process appears to have been diminished, if not eliminated. Does this decision represent, therefore, an erosion of the usefulness of patents in supporting the SR&ED argument? In my opinion, probably … but I think it is also true that the presence of a patent was never as decisive or supportive as we might have hoped it would be.