In a recent Federal Court ruling, Barry Dusome and Wyatt Dusome v Attorney General of Canada, Justice Allyson Whyte Nowak set aside a decision by the Commissioner of Patents that had rejected a long-pending patent application for a new poker-style card game. The case is notable not just for its subject matter, but for the fact that Barry Dusome represented himself in court—and for the judge’s decision to move quickly despite a pending Supreme Court ruling on related issues.

This post explores:

• Why the court chose not to wait for the Supreme Court
• What legal errors Justice Whyte Nowak identified
• Why this isn’t necessarily a win for the inventor

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A Long Journey to Court

Barry and Wyatt Dusome filed their patent application in 2008 for a method of playing a wagering poker game. The game included:

• A new betting structure to encourage larger pots
• Multiple bets in a card game
• Versions playable with physical cards or on a computer

After years of examination, the Canadian Intellectual Property Office (CIPO) rejected the application in 2018 and again in 2024, citing that the invention did not meet the definition of “invention” under the Patent Act and involved excluded subject matter.

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Why the Court Moved Quickly

The hearing took place on October 7, 2025, and the judgment was issued just over a month later on November 12, 2025. Justice Whyte Nowak acknowledged that the Supreme Court of Canada was expected to rule on related issues of subject-matter patentability. However, she chose not to wait.

“I have decided not to [wait] in light of the Appellants’ submissions at the end of the hearing which emphasized that the Appellants have been prosecuting the 028 Application since 2008 and any possible monopoly that could be granted will be of little value even if they are successful on appeal and reexamination.” — para 2

This decision reflects a practical consideration: even if the patent were eventually granted, its commercial value would likely be minimal due to the time elapsed.

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Errors in the Commissioner’s Decision

Justice Whyte Nowak found several legal errors in the Commissioner’s analysis. These errors were serious enough to warrant sending the application back for expedited re-examination.

1) Failure to Properly Construct the Claims

The Commissioner did not follow the accepted method of purposive construction, which requires:

• Interpreting the claims from the perspective of a skilled person
• Distinguishing essential from non-essential elements
• Considering the full disclosure, including drawings and specifications

Instead, the Commissioner simply concluded that all elements were essential without explanation.

“The Commissioner’s construction is restricted to a mere conclusion without justification that all of the claim elements in claims 1–24 are essential.” — para 26

Justice Whyte Nowak emphasized that this lack of transparency undermines fairness in the patent examination process.

2) Improper Assessment of the “Actual Invention”

The Commissioner focused on the abstract rules of the game and dismissed the physical components—like cards and computer systems—as irrelevant. Justice Whyte Nowak ruled this approach was legally incorrect.

“The Commissioner stated in the Decision that, ‘[w]hile there is no second step to purposive construction, the courts have not ruled it impermissible to determine the actual invention as distinct from the essential elements of the construed claims.’ This is contrary to Amazon and is an error of law.” — para 32

She clarified that the actual invention must be grounded in the claims as properly construed—not separated out as a standalone concept.

3) Misapplication of the Definition of “Art”

The Commissioner concluded that the method of playing a poker game was not an “art” under the Patent Act because it didn’t change anything material. Justice Whyte Nowak disagreed.

“The definitive definition of ‘art’ is that articulated in Shell Oil”.  – para 55  And, that “

any refusal of a patent application on the basis of non-patentable subject-matter must be grounded in the Patent Act (Amazon at para 49). As was the case with business method patents in Amazon, there is no per se prohibition on patenting subject-matter related to the rules of a card game. ” — para 57

She emphasized that the correct test asks whether the invention adds new knowledge that achieves a commercially useful result – para 42..

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Representing Yourself in Federal Court

Barry Dusome represented himself in court, which is rare in patent appeals. Despite the complexity of the legal issues, Justice Whyte Nowak found merit in his arguments and ruled in favor of the appellants.

However, this outcome should be viewed with caution. The court did not grant the patent—it merely ordered a fresh review. The Commissioner of Patents may still reject the application again, and there is no guarantee that the re-examination will result in a granted patent.

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What Happens Next?

The judgment directs the Commissioner to re-examine the application based on amended claims and in accordance with the court’s reasoning. But several uncertainties remain:

• The re-examination could still result in rejection
• The Commissioner may appeal the court’s decision
• The pending Supreme Court ruling could influence future interpretations

The case now returns to the patent office for further review.

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Conclusion: A Procedural Correction, Not a Patent Grant

The Federal Court’s decision in Dusome v Canada is a reminder that patent law hinges on proper procedure. Justice Whyte Nowak’s ruling corrects errors in how the application was assessed—but it does not guarantee a successful outcome for the inventors.

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Want to Read the Full Case?

You can access the Dusome v Canada decision here. 

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Updated November 2025