Written By: Liz Gray (IP Lawyer) & Charlotte Tyhurst (IP Lawyer)
The Patent Branch of the Canadian Intellectual Property Office (CIPO) released a new Practice Notice on March 24, 2026. The Notice provides encouraging new guidance on assessing patentable subject matter eligibility and signals a more promising approach for the examination of patent applications directed to computer-implemented inventions.
In particular, the 2026 Practice Notice includes revisions to the Canadian Manual of Patent Office Practice and, notably, replaces the 2020 Practice Notice. The 2026 Practice Notice also signals a welcome departure from CIPO’s “actual invention” analysis and problem-solution framework, and toward the primacy of purposive construction.
Moving Away from the “Actual Invention” Analysis and Problem-Solution Approach
Under the 2020 Practice Notice, Canadian Examiners were instructed to identify an “actual invention” within claimed subject matter as part of conducting a patent eligibility analysis. This approach, which is not grounded in Canadian law, proposed identifying the claim element(s) “that solve a particular problem”.
The March 2026 Practice Notice, however, expressly supersedes that earlier guidance, albeit by folding identification of what the inventor “actually invented” into the purposive construction process. Additionally, the 2026 Practice Notice strikes out certain sections of the Canadian Manual of Patent Office Practice, including the use of a “problem-solution” framework to assess essential elements.
By stepping away from these approaches, CIPO appears to be moving toward a framework that is more consistent with Canadian jurisprudence, including the recent case Dusome v. Canada (Attorney General) 2025 FC 1809.
Assessment of Patentable Subject Matter
However, despite the shift away from the 2020 Practice Notice, it remains unclear how CIPO’s patentable subject matter assessments will change in practice. In particular, the 2026 Practice Notice states that if “the processing of [an] algorithm on the computer does not improve the functioning of the computer”, then “‘[s]omething more’ is required to meet the physicality requirement.”
What constitutes “something more”, however, is not defined in Canadian law. Rather, this expression appears to be inspired by the US Supreme Court’s decision in Alice Corp. v. CLS Bank International, 573 U.S. 208 (2014). In Canada, however, the expression “something more” was merely used in passing by the Federal Court of Appeal in Canada (Attorney General) v. Benjamin Moore & Co. 2023 FCA 168 to reference the more detailed “discernable physical effect” analysis from Amazon.com, Inc. v. Canada (Attorney General), 2011 FCA 328.
As a result, there still remains some uncertainty as to how patentable subject matter will actually be assessed in Canada during examination moving forward. The emphasis on “physicality” remains, and the recent re-evaluation of the Dusome application by CIPO—which still concluded that the Dusome claims were not patentable—suggests that CIPO’s approach towards computer-implemented inventions may have changed in form but not in substance.
Looking Ahead
The abandonment of the “actual invention” analysis and the problem-solution framework is a positive and necessary step toward aligning CIPO’s practice with Canadian jurisprudence. That said, the 2026 Practice Notice falls short of providing clear guidance on purposive construction, and it remains to be seen how patentable subject matter will actually be assessed in practice.
The 2026 Practice Notice marks a step in the right direction, and our team will be closely monitoring CIPO’s implementation of the new guidance moving forward. For more information on patent-eligible subject matter or how these changes might affect your company’s IP strategy in Canada, contact one of our experts today!