The patentability of software

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The Australian Full Federal Court recently gave judgment in an eagerly anticipated case concerning the patentability of a computer-implemented business method [1]. The decision helps to clarify the circumstances in which software is patentable under Australian law.  The Australian position, following this decision, now looks very much like the one that exists under UK law.

Broadly, the claim in question involved using conventional web-browser software to gather evidence relevant to an assessment of an individual’s competency relative to a recognised qualification standard.

The issue before the Australian court concerned submissions, entered by the Commissioner for Patents, that the programming of a computer was nothing more than the ordinary task of a computer and, as such, was not patentable.

The Australian court agreed. The court held that for a computer-implemented business method to be patentable, the invention in question would need to be examined to determine whether, firstly, there was an abstract idea and, secondly, the computer was integral to that invention (as opposed to being simply a tool upon which the invention was performed).  For computerised business methods to be patentable, the invention must lie in the computerisation – it was not enough to simply implement the business invention using the computer.

This involved:

  • ascertaining whether the contribution claimed was technical in nature.
  • considering whether the invention solved a technical problem.
  • considering whether the claimed method merely required generic computer implementation.
  • considering whether the computer was merely acting as an intermediary, adding nothing to the substance of the idea. By applying this approach, the claimed invention was found not to be patentable.
  • The approach outlined above will be familiar to English readers, in particular the focus on a technical contribution and the solution of a technical problem. Indeed the Australian Court, in reaching its decision, referred to UK judicial authority on the subject. It seems that the two jurisdictions are now largely aligned in their approach to the patentability of software.
  • A distinction was drawn between a technological innovation, which is patentable, and a business innovation, which is not.


[1] Commissioner of Patents v RPL Central Pty Ltd FCAFC 177