If you have developed software that solves a real-world problem — whether it controls a device, processes transactions in a new way, manages a complex system, or delivers a technical outcome — patent protection may be available and commercially valuable. This page explains the current legal framework, what makes software patentable, and how we approach drafting software patent applications to maximise both patentability and enforceability.
The current law: what changed in 2025–2026
The patentability of software in Australia was uncertain for years. That uncertainty has now been resolved through the Aristocrat Technologies v Commissioner of Patents litigation — a case that progressed through every level of the Australian court system over nearly a decade.
In September 2025, the Full Federal Court delivered a unanimous decision — Aristocrat Technologies Australia Pty Ltd v Commissioner of Patents [2025] FCAFC 131 (Aristocrat '25) — establishing a clear test for computer-implemented inventions. On 5 February 2026, the High Court of Australia refused the Commissioner of Patents' application for special leave to appeal, leaving Aristocrat '25 as the leading authority on the patentability of software in Australia.
In refusing special leave, the High Court found "insufficient reason to doubt the correctness" of the Full Court's decision, noting that the Full Court had applied established principles and "reached a unanimous and clear conclusion." This brings long-awaited certainty to the patent eligibility of software and computer-implemented inventions in Australia.
In March 2026, IP Australia updated its Patent Manual of Practice and Procedure to align examination practice with Aristocrat '25, formally shifting how patent examiners assess software-related applications.
The patentability test: manner of manufacture
Under Australian patent law, an invention must be a "manner of manufacture" — a legal concept that requires the invention to produce an artificially created state of affairs with economic utility. For software, the test applied in Aristocrat '25 — and now adopted in IP Australia's examination manual — distinguishes between:
- Not patentable: an abstract idea that is merely manipulated on a computer. This covers schemes, business methods, or mathematical formulas that simply use a computer as a tool to perform calculations or organise information, without producing any technical outcome beyond what the computer ordinarily does.
- Patentable: an abstract idea that is implemented on a computer to produce an artificial state of affairs and a useful result. This covers software that creates a tangible, practical outcome — altering how a system operates, controlling hardware, processing data in a technically novel way, or producing a result that would not exist without the specific implementation.
The assessment is one of substance, not form. Merely reciting computer hardware in a claim, or pointing to changes in computer memory, will not transform an unpatentable scheme into a patentable invention — the artificial state of affairs must be more than the inevitable by-product of running an abstract idea on a computer.
Critically, the Full Court made clear that the invention does not need to advance computer technology itself to be patentable. It is enough that the software, when implemented, produces a useful and concrete result in the relevant field — whether that field is gaming, finance, logistics, healthcare, agriculture, or any other domain.
A computer-implemented invention does not need to represent a breakthrough in computing. Innovation in the relevant field — implemented through software — is sufficient.
What is patentable and what is not
The distinction between patentable and non-patentable software turns on whether the software produces a practical, technical outcome or merely automates an abstract process. The following examples illustrate the boundary:
Likely patentable:
- Software that controls a physical device or system in a new way (e.g. an algorithm that optimises the operation of industrial equipment)
- A data processing method that produces a technically novel output (e.g. a new image processing technique or signal analysis method)
- A system where software and hardware interact to create a new operational state (e.g. an electronic gaming machine with novel game mechanics implemented through its controller)
- A mobile application that uses device sensors, networking, or other technical features to deliver a result that could not be achieved without the specific implementation
- A cybersecurity method that detects and responds to threats through technical analysis of network traffic
Unlikely to be patentable:
- A business method or administrative process that happens to run on a computer, without any technical contribution beyond the ordinary function of the hardware
- A mathematical formula or financial model implemented in software, where the computer simply performs calculations
- A scheme for presenting information or encouragement offers to users, where the substance of the invention is the business logic rather than a technical implementation
The cases that shaped the law
The current legal position did not emerge overnight. Understanding the key cases helps clarify where the boundaries lie.
RPL Central (2015): The Full Federal Court held that a computer-implemented method for gathering evidence for competency assessment was not patentable. The invention was characterised as a business scheme implemented on generic hardware, with the ingenuity residing in the idea rather than in any technical implementation. The High Court declined to hear an appeal in 2016.
Research Affiliates (2014): The Full Federal Court found that computer-implemented mathematical formulas for securities market indexing were not patentable. The invention was characterised as an abstract idea that did not become patentable merely by being implemented on a computer.
Aristocrat Technologies (2018–2026): The defining case for software patentability in Australia, concerning electronic gaming machines with novel feature games and configurable symbols. The Patent Office rejected Aristocrat's claims in 2018. A single judge of the Federal Court found them patentable in 2020, but the Full Federal Court reversed that decision in 2021, applying a restrictive "two-step" test that asked whether the invention represented an advance in computer technology. The High Court split 3:3 in 2022, which by operation of law left the restrictive approach standing, and the remaining claims were remitted — being held unpatentable at first instance in 2024. On appeal, in Aristocrat Technologies Australia Pty Ltd v Commissioner of Patents [2025] FCAFC 131 (Aristocrat '25), the Full Federal Court unanimously held the claims were patentable. The Court rejected the two-step test and returned to first principles: the claimed invention, assessed as a whole — including both inventive and non-inventive elements — produced an artificial state of affairs and a useful result. On 5 February 2026, the High Court refused the Commissioner's application for special leave to appeal, leaving Aristocrat '25 as the leading authority and decisively shifting the balance back towards the patentability of software.
The key shift: examiners must now assess the claimed invention as a whole — including how the software interacts with hardware and systems — rather than isolating the novel features and asking whether they alone represent an advance in computer technology.
How we draft software patent applications
The patentability of a software invention often depends as much on how the patent specification is written as on the underlying technology. A well-drafted specification presents the invention from the right technical perspective, while a poorly drafted one can make a genuinely innovative system appear to be a mere business scheme.
Framing the technical problem and solution. We identify and articulate the technical problem the software solves and describe the implementation in terms of how the system operates — not just what business outcome it achieves. This means describing the interaction between software components, hardware, data flows, and system states in sufficient technical detail to demonstrate that the invention produces an artificial state of affairs and a useful result.
Holistic claim characterisation. Following the Aristocrat approach, we draft specifications that present the invention as a complete system rather than an abstract idea bolted onto generic hardware. The technical infrastructure is described as integral to the invention, not merely incidental to it.
Multiple claim strategies. Software inventions can be infringed at different levels — by the company operating the system, by an end user, or by someone distributing the code. To maximise enforceability, we draft claims from multiple angles:
- System claims — covering the complete architecture including servers, databases, and client devices
- Method claims — covering the steps performed by the system
- Device claims — covering individual components such as a server or user device configured to perform specific functions
- Computer-readable medium claims — covering the software itself as stored on a medium
- Service provider claims — directed at the party operating the service, enabling direct infringement actions
Protecting the same invention through multiple claim types creates overlapping coverage that makes the patent significantly more enforceable against different actors in the system.
International considerations
Software patentability rules vary significantly between jurisdictions. An application drafted solely to satisfy Australian requirements may face objections in other countries — and vice versa. We prepare specifications with international filing in mind from the outset.
- United States: Following the Alice Corp v CLS Bank (2014) Supreme Court decision, software patents face a two-step eligibility test. Claims must demonstrate something "significantly more" than an abstract idea. The US test differs from Australia's but the practical drafting strategies overlap considerably.
- Europe: The European Patent Office requires a "technical character" and assesses whether the software makes a "technical contribution." Pure business methods are excluded, but software that solves a technical problem is generally patentable.
- Other jurisdictions: Countries including China, Japan, South Korea, and India each apply their own eligibility criteria. A well-drafted specification that clearly articulates the technical implementation will generally provide the strongest foundation for prosecution across all major patent offices.
The PCT (Patent Cooperation Treaty) pathway allows you to file a single international application and defer country-specific decisions, giving you time to assess which markets justify the investment in national phase entry.
Our expertise
Patentec's attorneys bring direct software engineering experience to every engagement. This means we understand your invention at a technical level — not just the business concept, but the architecture, the data flows, and the implementation details that determine patentability. Our team has protected software inventions for technology companies including Google, Nokia Corporation, and IBM, and has drafted hundreds of software-related patent specifications across technologies including:
- Mobile applications and platform technology
- eCommerce and payment processing systems
- Authentication and cybersecurity
- Artificial intelligence and machine learning systems
- Cloud computing and SaaS platforms
- IoT and connected device systems
- Financial technology and transaction processing
- Augmented and virtual reality
Protect your software invention
If you have developed software with genuine commercial potential, the legal landscape in Australia is now more favourable to patent protection than it has been in over a decade. The earlier you secure a priority date, the stronger your position.
Contact Patentec for a complimentary consultation. We will assess the patentability of your software invention, identify the strongest claim strategies, and recommend an approach tailored to your commercial objectives — whether you are filing in Australia alone or pursuing international protection.
Speak to a Patent Attorney: 02 9188 9689