Copyright protection is available for software, being included in the definition of a literary work under the Copyright Act. Patent protection, offering a different scope of protection, may also be available for software and may be more desirable. Copyright protects the software's expression of an idea, but nothing more. For example, controlling a robot's movements by software generated electrical signals can be programmed in a variety of ways, each program being the subject of copyright protection. However, patent protection, if available, would protect the particular physical embodiment of the software controlled robot which had been created. This would include not only the program but all of the physical elements comprising the software controlled robot.

The difficulty with software is that programs generally centre around the use of mathematics and algorithms. It is clear that a software-related invention must do more than merely perform a calculation and must be more than an algorithm embodied in software. Otherwise, it will fall into the category of a "mere scientific principle or abstract theorem" and therefore be unpatentable. .

The test for determining whether a software related invention is patentable was set out in Schlumberger Canada Ltd. v. Commissioner of Patents (1981), 56 C.P.R.(2d) 204 (F.C.A.). The test considers, what (if anything), according to the application, has been discovered. The court held that if the invention was merely the discovery that by making certain calculations according to certain formulae, useful information could be extracted from certain measurements, then the application should be refused on the basis that it lacked patentable subject matter under section 2 of the Patent Act. Essentially, the court suggested that if the program interacted with physical objects other than the computer in a novel, useful and inventive way, the invention was patentable. In response to Schlumberger and related decisions, the Patent Office developed new guidelines, used by the Patent Office Examiners to assess the patentability of computer related subject matter. The guidelines are as follows:

1.Computer programs per se are not patentable;
2.Processes which are unapplied mathematical calculations, even if expressed in words rather than in mathematical symbols, are not patentable;
3.A process and/or computer program which merely produces information for mental interpretation by a human being is not patentable, nor does the process or program confer novelty upon the apparatus which uses it;
4.Claims drawn up in terms of means plus function which merely produce intellectual data are not patentable;
5.New and useful processes incorporating a computer program, and apparatus incorporating a programmed computer, are directed to patentable subject matter if the computer related matter has been integrated with another practical system that falls within an area which is traditionally patentable; and
6.The presence of a programmed general purpose computer or a program for such a computer does not lend patentability to, nor subtract patentability from, an apparatus or process.

In conclusion, as a result of the Schlumberger decision and the policy of the Patent Office, it is clear that some software related inventions are clearly patentable in Canada. The dividing line between programs and processes is not definite and will continue to evolve. It appears that the Patent Office will refuse any patent application which is viewed as being directed solely at a computer program. However, a careful characterization of the subject matter of the invention may allow a Patent Office Examiner to determine that the invention lies not in the program, but in a specific, patentable area of technology in which the computer is merely used to implement the invention. Thus, carefully drafted claims may be sufficient to turn an unpatentable program into a patentable process