CIPO maintains patent examination practices inconsistent with current jurisprudence in draft MOPOP revisions

The Canadian Intellectual Property Office (CIPO) has released draft revisions to four cornerstone chapters of the Manual of Patent Office Practice (MOPOP): Chapter 12 (Fundamentals of Examination), Chapter 17 (Subject-Matter), Chapter 22 (Computer-Implemented Inventions), and Chapter 23 (Biotechnology and Medicinal Inventions). Although formally labeled “consultation drafts,” the texts provide a clear preview of the framework CIPO intends to apply once finalized. The consultation period was open from June 2 to July 11, 2025. 

While the changes from the present chapters in MOPOP are sweeping and, in some places, controversial based on some of the comments that were submitted, they appear to be primarily based on the guidance provided in PN2020-04, with some consideration given to subsequent jurisprudence. It is expected that, despite some of the concerns raised during the consultation process, the revisions will come into effect in substantially the form they were released as consultation drafts.

The following summarizes the most salient changes, highlights areas where the drafts appear misaligned with recent Federal Court jurisprudence and offers practical recommendations for preserving claim scope during and after the transition to the new MOPOP.

Summary of key changes

• Shift from “problem–solution” to “actual invention” terminology: CIPO has deleted the prior, court-criticized problem–solution language from Chapter 12 and re-framed the eligibility inquiry around an “actual invention” construct in Chapters 17, 22, and 23.Despite the change in labels, the drafts still substantially direct examiners to identify a problem and its solution, raising concerns that the same exclusive analytical lens the courts rejected will simply re-emerge under a new name.


• Renewed emphasis on “physicality”: throughout the revised chapters, patentable subject-matter must “have physicality, either as something with physical existence or something that manifests a discernible physical effect or change.” The language tightens CIPO’s existing stance and may imperil claims that rely on data processing or informational outputs, even when those outputs are central to a real-world application.


• Detailed, prescriptive guidance for computer-implemented inventions (CII): revised Chapter 22 supplies a granular checklist for memory claims, algorithmic improvements, user-interface designs, and AI training disclosures that goes arguably well beyond what is required by Canadian law, either statutory or jurisprudence. The draft text insists that the preamble of a computer-readable-medium claim direct the claim to a “physical product,” and it catalogues specific factors examiners should weigh when deciding whether an algorithm truly “improves the functioning of the computer,” which is not based on any jurisprudence.


• Expanded treatment of biotech diagnostics and life-form claims: Chapter 23 introduces new examples illustrating diagnostic method eligibility, clarifies CIPO’s ongoing ban on higher life forms, and warns that genetically modified organs or tissues are “generally” excluded. Contrary to Supreme Court pronouncements, it also declares that fertilized eggs and totipotent stem cells are outside the statutory definition of an “invention.”


• Procedural refinements in Chapter 12: the examination chapter updates guidance on prior-art searching, examiner interviews, and withdrawal of office actions. The text eliminates the former presumption that an applicant may schedule an interview simply by calling; instead, every interview “must” be arranged in advance, and only appointed agents or applicants (not foreign practitioners) may initiate the request.

Given that the revisions to MOPOP are coming into effect in some form or another resembling the consultation drafts, patent applicants need to practically accept these revisions as the Commissioner’s interpretation of what constitutes patentable subject matter. Examiners looking at each application do not have much leeway to deviate from MOPOP as they are to consistently implement the Commissioner’s directions as outlined by the manual. Therefore, Canadian applications, including national phase entries, should be reviewed and revised to improve the chances that an examiner will accept the claims as compliant with what constitutes patentable subject matter.

Recommended next steps

• Review pending claims for “physicality” language. Where feasible, introduce dependent claims that recite explicit sensor inputs, actuator outputs, or tangible intermediates. Even if those limitations narrow the scope, they can serve as eligibility anchors while broader claims are litigated before the Patent Appeal Board.


• Computer-readable medium claims should be amended to align the preamble with CIPO’s preferred formulation (“a physical memory having stored thereon”) and affirm in the specification that the recorded code is machine-executable, not merely descriptive.


• Provide measurable benchmarks, such as milliseconds saved, watts reduced, and packets per second increased, to satisfy CIPO’s “improvement” factors. Even anecdotal performance data can help frame arguments during prosecution.


• For AI inventions, consider enumerating dataset type, volume, and key attributes; describing model architecture; and outlining training parameters. If proprietary data cannot be fully disclosed, explain why off-the-shelf or synthetic data would allow a skilled person to reproduce the model without undue experimentation.


• For diagnostic inventions, attempt to tie algorithms to sample-handling steps. For example, include claim language reciting the acquisition of biologic material or the operation of a device that produces the diagnostic parameter. It is noted that numerous patents have been granted relating to diagnostic inventions without a physicality requirement, and that advances in biotechnology and information technology should be considered.


• In regard to the revisions relating to medical treatments, the Supreme Court of Canada is slated to hear arguments relating to medical-treatment exclusions this fall, which may reshape relevant portions of the MOPOP revisions relatively soon. Therefore, applicants should build portfolios with layered claim strategies as prosecution generally takes years to go through.


• Given the new requirement that interviews be pre-scheduled, agents should request them at the first opportunity and arrive with proposed amendments in hand. CIPO’s compact-prosecution policy makes first-action clarity ever more critical.

In summary, CIPO’s consultation drafts arrive at a moment when Canadian eligibility law is in flux and the innovation landscape it aims to govern is accelerating. Although the final MOPOP text may soften some of the current prescriptions, applicants should treat the drafts as a reliable forecast: claims that lack an explicit physical anchor or demonstrable computer-centric improvement will face heightened scrutiny. By front-loading technical detail in the specification, crafting claims that straddle multiple eligibility categories, and preserving detailed prosecution records, patentees can safeguard valuable subject matter and position themselves advantageously for appeals to the courts should final guidance prove more restrictive than anticipated. 

Our Patent Development and Strategy team is monitoring the consultation closely and stands ready to assist in claim audits, specification rewrites, and examiner-interview preparation to ensure that client portfolios remain resilient under the forthcoming MOPOP regime.