Opinion: It’s time to stop discussing the patentability of computer-implemented inventions in Australia

The Aristocrat decisions have settled the law and “computer implemented inventions” no longer matter. The decade long consideration of the patentability of “computer implemented inventions” is over – the category itself should now disappear. Following the High Court’s lead, the law requires characterisation of the real invention, not divergence into “generic computers” or “improvements in the computer”. The computer is a tool, not a legal test – it’s time to modernise practice in this area.

The end of a decade of debate and uncertainty

For more than a decade, the discussion of the patentability of computer‑implemented inventions in Australia has been dominated by uncertainty, debate, a large volume of patent office decisions – many refusing patentability – and a painfully slowly developing body of case law. During this time practitioners, patent examiners and applicants alike have spent years revisiting and recalibrating their view of the boundaries of the concept of “manner of manufacture” under s 18(1A)(a) of the Patents Act 1990 (Cth).

In recent years the Aristocrat litigation has sat at the centre of this discussion. What began as a routine refusal of claims directed to electronic gaming machine software evolved into litigation with a complex procedural history, including an evenly divided High Court in 2022 and subsequent remittal to the Full Federal Court. The even division at the High Court necessarily sparked a lot of speculation as to where Australia would end up on the issue.

That speculation should now end.

Convergence of legal reasoning

On 5 February 2026, the High Court refused the Commissioner of Patent’s special leave request to appeal the decision of the Full Federal Court that found Aristocrat’s invention patentable.¹ In doing so, the Court made clear that there was “insufficient reason to doubt the correctness” of the Full Court’s approach, and that revisiting the matter would serve no useful purpose in the administration of justice. The Full Court had applied established principles concerning manner of manufacture and had reached a “unanimous and clear conclusion as to characterisation”.

While the refusal of special leave is not a merits judgment, its practical effect is significant. The Aristocrat line of cases has now run its course. The High Court has signalled—explicitly—that the existing analytical framework for assessing computer‑implemented inventions is settled. The Full Court’s reasoning now stands as the authoritative position.

The significance of the High Court’s refusal of special leave lies not merely in the outcome, but in the convergence of judicial reasoning it confirms. Three judges of the Federal Court (Beach, Rofe and Jackman JJ) followed the approach of three judges of the split High Court (Gordon, Edelman and Steward JJ) and this approach has been effectively endorsed by the High Court. What remains is to determine how to apply the approach across different inventions. That application will no doubt continue to evoke debate.

Why the “computer-implemented inventions” label is unhelpful

In the author’s view, the Aristocrat line of cases indicates that it is a mistake to frame the inquiry as a consideration of what computer-implemented inventions are and are not patentable. That question invites several unhelpful and misleading inquiries. The Aristocrat line of cases reject the notion that there exists a separate inquiry into the “patentability of computer‑implemented inventions” as such. That framing misdescribes the task. The law does not single out computer implementation of an invention as creating a separate category of invention that requires special or separate attention.

The better view is that “computer‑implemented invention” is not a meaningful category for the purposes of evaluating patentable subject matter. The correct inquiry is more disciplined. One must first characterise the invention, in substance and in context. For computer-implemented inventions the computer will not feature in that characterisation. If it did, the invention would cease to be a computer-implemented invention and would instead be a computer invention. Settled principles are then applied to the properly characterised invention.

Whilst there is no formulaic approach to characterising the invention, it will often involve identifying the field to which the claims are directed and identifying the development in the field that is claimed. Having characterised the computer-implemented invention – without regard to the computer – the decision-maker then considers whether that sits inside or outside the boundaries of patentable subject matter as indicated by case law.

On this approach, the presence of a computer is neither determinative nor presumptively disqualifying. Computers are simply tools. If the claims, properly characterised, are directed to an invention in a field that the authorities have recognised as patentable then the inquiry should proceed on that basis. Conversely, if the claims are directed, in substance, to an abstract information processing scheme or business method, then the fact that it is implemented in software cannot rescue it.

Whilst there will always be grey areas, once that is accepted, much of the perceived complexity falls away. The focus returns to orthodox questions of characterisation and subject matter—questions that are familiar, manageable, and capable of consistent application across different technologies.

Judicial observations on problems with the computer-implementation label

The computer-independent evaluation of computer-implemented inventions squarely aligns with the reasoning of the Full Federal Court:

“The question of whether a claim, as properly characterised, is the proper subject matter of a patent should not be deconstructed to require, separately from the general principles of patentability, consideration of whether the subject matter is ‘computer‑implemented’.”²

Various judges throughout the Aristocrat line of cases emphasised the point:

“Asking whether the claimed invention is an advance in computer technology, as opposed to gaming technology or an advance in technology at all, was neither necessary nor helpful.”³

“There may well be a technological innovation in the field of technology to which the invention belongs, even though it cannot be said that there has been some technological innovation in the field of computers.”⁴

“Patentable subject matter may be found to exist in a way in which a gaming system or machine functions, even though a computer engineer may not consider that there has been any advance in the field of computer technology.”⁵

“Implementing the scheme, idea or information in a generic computer… does not change its fundamental character.”⁶

All these comments inform us as to the content and application of a key inquiry formulated by the Full Court of:

“A better way of expressing the point… is to ask whether, properly characterised, the subject matter that is alleged to be patentable is
(i) an abstract idea which is manipulated on a computer; or
(ii) an abstract idea which is implemented on a computer to produce an artificial state of affairs and a useful result.”⁷

The point could equally be written to distinguish between mere abstract ideas (whether or not they are computer-implemented) on the one hand and abstract ideas that produce an artificial state of affairs and a useful result, as implementation on the computer is by no means the only way to implement an abstract idea to produce an artificial state of affairs and a useful result.

Alignment with earlier cases and examination practice

The approach outlined above does not represent a large departure from earlier Federal Court cases. Indeed, a large departure would be unlikely to be correct, given the Full Court’s endorsement of the result of earlier cases, even if the explanation for the results in those earlier cases was limited to the specific context of what was being decided.

However, it does represent a significant departure from examination practice. As of the date of writing the Patent Manual of Practice and Procedure includes several sections discussing specific fields in which the issue of patentable subject matter often arises. These fields are:

1. Fine Arts
2. Discoveries, Ideas, Scientific Theories, Schemes and Plans
3. Printed Matter
4. Computer Implemented Inventions, Schemes and Business Methods
5. Games and Gaming Machines
6. Mathematical Algorithms
7. Methods of Testing, Observation and Measurement
8. Mere working directions
9. Nucleic Acids and Genetic Information
10. Micro-Organisms and Other Life Forms
11. Treatment of Human Beings
12. Human Beings and Biological Processes for Their Generation
13. Agriculture and Horticulture
14. Combinations, Collocations, Kits, Packages and Mere Admixtures
15. New Uses

The author contends that category d. should be removed. As a consideration whether a computer-implemented invention is a scheme or business method, it is redundant when considered alongside category b, as a business method is a subcategory of a scheme or plan. Grouping computer-implemented inventions with schemes and business methods is also curious, given that, when properly characterised, a computer-implemented invention could appropriately fall under several of the other categories.

If computer-implemented inventions are no longer treated as a separate category, examiners will be encouraged to focus on what the computer implements and assess whether that qualifies as patentable subject matter. For the reasons above, according to the author, this is now the proper method for evaluation.

Any explanation to examiners of how to treat the computer related features of a claim can be inserted into the discussion of the individual categories. This will facilitate a more tailored explanation for the category, as the explanation may differ, for example, as between evaluating the mere scheme and plan exclusion, the printed matter exclusion and the mere working directions exclusion.

Indeed, the relevant considerations for category n. of combinations or collocations appears to have been influential in Aristocrat, as the Full Court endorsed the High Courts characterisation of the invention that encompassed the combination of both the inventive and the non-inventive elements as “an EGM incorporating an interdependent player interface and a game controller which includes feature games and configurable symbols”.⁸ Interdependence has long been recognised as indicating a patentable combination, as opposed to an unpatentable mere collocation.

Conclusion

With the Aristocrat litigation now effectively concluded, Australian law no longer supports a distinct inquiry into the patentability of “computer‑implemented inventions”. The correct approach for a computer-implemented invention is the orthodox one: characterise the invention in substance – without regard to the use of the computer – and then apply established principles of manner of manufacture.