SR&ED – What is a technological uncertainty?

A scientific or technological uncertainty means that the probability of achieving a particular goal or result, or how to achieve it, can not be known or determined in advance based on experience or scientific or technological knowledge usually available.

This theoretical definition can sometimes be confusing when trying to determine in practice the technological uncertainty associated with a project.

A recent judgment of the Tax Court of Canada in the case of ” Concept Danat Inc. v. The Queen ” comes to help us better understand the notion of technological uncertainty as described in this excerpt:

[50] As part of this project, Danat attempted, by carrying out a multitude of tests, to find the temperature to perform the printing on fabrics by the sublimation technique without destroying the fiber and by penetrating the color to the bottom of the fabric. According to Mr. Bourgault, the technological advancement was to further develop the sublimation printing technique to allow better resistance properties of clothing to abrasion, scratching and washing.

[51] According to Mr. Sylla, Danat tried different combinations of pressure, pressure time, temperature and ink quantity. Danat was not confronted with any technological limitation since it operated within the ranges of the current parameters offered by its equipment. Danat used different combinations of the available parameters. Since she did not go beyond the normal operating range of her equipment, Danat was not confronted with technological uncertainty. As part of this project, Danat was not aimed at eliminating technological uncertainty or advancing technology. According to Mr. Sylla, Danat proceeded by the method of trial and error and did not follow a systematic approach.

[52] In this case, Danat did not convince me of any technological uncertainty in this project. She used different combinations of available parameters and offered by her equipment: various amounts of ink, various pressures, various temperatures and various durations of the pressure. The evidence did not demonstrate that Danat sought to go beyond the operating parameters of his equipment. Similarly, I do not believe that there has been advancement of technology; indeed, this Court has already ruled that the novelty of a product is not sufficient to demonstrate technological advancement (Zeuter Development, supra at paras 23 and 24). The satisfactory use of the sublimation technique on rib, nylon or soccer stockings does not translate into technological advancement, but rather results in a new product.

In analyzing this judgment, we can draw the following lessons:

Conducting a series of tests even if different parameters are varied is not necessarily an experimental test eligible for SR & ED

When performing work within the limits of our knowledge and within the technological limitations of existing equipment or software, this is generally not SR & ED eligible work.

The trial and error method often used in everyday language indicates that we are not in a systematic approach that meets the requirements of the SR & ED program, which involves making a hypothesis and validating this hypothesis by experimental tests.

The development of a new product does not necessarily imply that we have performed activities that qualify for the SR & ED program. In order for this to be the case, the three eligibility criteria must be met: technological uncertainty, scientific approach and technological advancement.

Do not hesitate to contact us to validate the eligibility of your projects to the SR & ED program or to prepare your SR & ED claims