Cards on the Table: Examining the Patentability of Poker Method Claims

Case: Dusome v Canada (Attorney General), 2025 FC 1809

Authors: Marian Wolanski and Renée Taillieu

On November 12, 2025, the Federal Court released its decision in Dusome v Canada (Attorney General), 2025 FC 1809, addressing the patentability of an application claiming a “Method for Playing a Card Game. The Commissioner of Patents (“the Commissioner”) had previously refused the application on the basis that it did not meet the definition of “invention” under section 2 of the Patent Act and claimed excluded subject matter contrary to subsection 27(8). Justice Whyte Nowak set the Commissioner’s refusal aside and remitted the application back to the Commissioner for expedited re-examination based on the amended claims, having identified several errors of law in the Commissioner’s analysis.   

 On November 12, 2025, the Federal Court released its decision in Dusome v Canada (Attorney General), 2025 FC 1809, addressing the patentability of an application claiming a “Method for Playing a Card Game”. The Commissioner of Patents (“the Commissioner”) had previously refused the application on the basis that it did not meet the definition of “invention” under section 2 of the Patent Act and claimed excluded subject matter contrary to subsection 27(8). Justice Whyte Nowak set the Commissioner’s refusal aside and remitted the application back to the Commissioner for expedited re-examination based on the amended claims, having identified several errors of law in the Commissioner’s analysis.   

Background

The Applicants filed Canadian Patent Application No. 2,701,028 (the “028 Application”) in 2008, which claims a method of playing a wagering poker game playable with physical cards or on a computerized system. After several years of prosecution, the Commissioner ultimately refused to grant the 028 Application on two grounds.

First, the Commissioner concluded that the actual invention, a method of playing a poker game, does not qualify as an “art” under section 2 of the Patent Act as it does not change the character or condition of anything material.

Second, the Commissioner found that the invention amounted to an abstract algorithm and lacked physicality, rendering it unpatentable under subsection 27(8) of the Patent Act, which excludes patents for “any mere scientific principle or abstract theorem”.

 The Federal Court Decision

The Court identified four legal errors in the Commissioner’s review of the 028 Application.

1. Claims Construction: While the Commissioner correctly stated the law on purposive construction as set out in Free World Trust and Whirlpool, his application was flawed, amounting to “a mere conclusion without justification” that all elements in each claim are essential. In particular, the Commissioner failed to (i) isolate and give meaning to key terms to identify the elements of the invention and define the subject-matter of the claims, (ii) consider the meaning of those terms from the “critical lens” of the person of ordinary skill in the art, and (iii) examine the disclosure to determine the purpose of the invention. The Court held that these errors alone warranted remitting the 028 Application for re-examination. The Court also emphasized that, on re-examination, the Commissioner should “keep an open mind to the possibility that a novel business method may be an essential element of a valid patent claim”.

    

2. Assessment of Patentability and the “Actual Invention”: The Commissioner erred in assessing patentability based on the “actual invention” of the 028 Application rather than the subject-matter defined by the claims, an approach “squarely rejected” by the Federal Court of Appeal in Amazon. The Court clarified that the proper approach requires the Commissioner to first conduct a purposive construction of the claims and then determine whether the claimed subject-matter qualifies as an “invention” under section 2 or constitutes excluded subject-matter under subsection 27(8) of the Patent Act.

   
   

3. Application of the “Actual Invention” Question: In assessing the “actual invention,” the Commissioner erred by “stripping away” the physical elements of the invention (i.e., the physical cards and computer), focusing only on the new knowledge added to the art of poker. The Court noted that this approach ignored the guidance in Benjamin Moore, which requires the Commissioner to “keep an open mind and not hastily conclude that the subject-matter claimed is not patentable simply because it involves the use of conventional computer technology”. The Court emphasized that the patentability assessment must consider the process or method (expressed as the subject-matter defined by the claim once construed per Amazon) not merely the new knowledge.

    

4. Assessment of Patentable “Art”: The Commissioner erred by applying the wrong test for what constitutes an “art” under section 2 of the Patent Act. Relying on Lawson, Progressive Games, and section 17.03.19 of MOPOP, he concluded that a method of playing a poker game is not an art as it “does not change the character or condition of anything material”. The Court clarified that the correct test, as set out in Shell Oil, applied in Progressive Games, and endorsed in Benjamin Moore, asks whether the claims “add new knowledge to affect a desired result which has commercial value”. The Court emphasized that each case must be assessed on its own facts, considering the state of knowledge at the relevant time, and that there is no per se prohibition on patenting subject matter related to the rules of a card game.

Ultimately, the Court allowed the appeal, set aside the Commissioner’s decision, and ordered a fresh, expedited examination of the 028 Application based on the amended claims.