Patents on software inventions in Australia - the rules have changed (for the better)
Australia has produced global software success stories like Atlassian, Canva, and Rokt. Yet, for the last decade, protecting the intellectual property behind these innovations has been an uphill battle. A rigid approach to patent law has often left software investors and R&D leaders questioning whether their technology could be protected at all.
That landscape has just shifted.
A recent decision by the Full Court of the Federal Court (Aristocrat Technologies Australia Pty Ltd v Commissioner of Patents) has delivered a significant win for the tech sector. While the regulator (IP Australia) is appealing the decision, the ruling provides a much-needed, innovation-friendly framework for assessing software patents.
Here is what the decision means for your IP strategy and R&D investment.
A Decade of Uncertainty
The Aristocrat case has been running for years, longer, in fact, than the life of the patents it was fighting to protect.
The core dispute was whether Aristocrat’s electronic gaming machines were eligible for a patent. The case went all the way to the High Court in 2022, resulting in a rare 3:3 split decision. Due to a technicality, this split meant the previous ruling (rejecting the patent) stood, but it left the industry with no clear legal precedent because all six High Court judges criticised the test used.
Fast forward to 2025: the case returned to the Full Federal Court ("Aristocrat II"). This time, the Court departed from the previous confusing approach and established a new, clearer standard for software innovation.
The new test: A "Holistic" Approach
The most critical outcome for business leaders is the rejection of the old, restrictive "two-step" test.
Previously, patent examiners would ask: Is this an advance in computer technology? This set a notoriously high bar, often rejecting genuine innovations simply because they ran on standard hardware.
The Full Court has endorsed a simpler, more flexible test:
Is the claimed invention:
An abstract idea manipulated on a computer? (if yes, then it is not patentable subject matter) or
An abstract idea implemented on a computer to produce an artificial state of affairs and a useful result? (patentable subject matter)
Why this matters: The High Court clarified that an invention must be assessed as a whole. Examiners can no longer strip away the standard hardware components to isolate the "new" software bit and claim it is just an abstract idea. They must consider how the software and hardware work together to produce results.
This holistic approach aligns Australia more closely with the reality of modern R&D, where innovation often lies in how software uses hardware, not just in building new hardware.
It’s not over yet
While this is a positive step, certainty is not yet guaranteed.
1. The High Court appeal - IP Australia has sought special leave to appeal this decision to the High Court. They argue that a final ruling is needed to settle the law once and for all.
2. IP Australia’s current stance - In response to the ruling, IP Australia has updated its Manual of Practice and Procedure. While they have included the new "artificial state of affairs" test, they have retained "the state of the art" as a factor for consideration.
This could allow examiners to continue using the old approach of isolating "new" features versus "old" features, potentially limiting the benefit of the court's ruling until the High Court appeal is resolved.
Key takeaways for business leaders
Despite the pending appeal, the Aristocrat II decision provides a strong basis for a more aggressive IP strategy.
Revisit your patent portfolio: If you have previously held back on filing software patents in Australia due to the strict rules, it is time to reassess. The environment is now more favourable than it has been in a decade.
File now on your software inventions: Don't wait for the High Court appeal. Filing now allows you to capitalise on the current Full Court precedent.
Draft for "Technical" results: When documenting your R&D, focus on the technical implementation. Ensure your patent specifications clearly describe how your software solves a technical problem and creates a useful result, rather than just solving a business problem.
Advocate: Consider joining industry efforts to ensure IP Australia’s examination practices actually align with this new, pro-innovation court ruling.
Key stakeholders impacted:
R&D Managers: To capture more innovation value.
IP Portfolio Managers: To adjust filing strategies.
Legal Counsel: To navigate the risks of the pending appeal.