Could the High Court put a new spin on an old law for the patentability of Computer Implemented Inventions?

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2022 could be shaping up to be a big year for the Commissioner of Patents regarding patent-eligibility of software in Australia, depending on the High Court.

There are now two Special Leave applications on foot at the High Court of Australia from two recent Full Federal Court of Australia judgments.

  1. Aristocrat filed a Special Leave application to the High Court on 22 December 2021 by way of: The Commissioner of Patents v Aristocrat Technologies Australia Pty Ltd [2021] FCAFC 202.
  2. Repipe filed a Special Leave application to the High Court on 6 January 2022 by way of: Repipe Pty Ltd v Commissioner of Patents [2021] FCAFC 223.

The substantive issue in both cases is around patentability of software – risk management software in the case of Repipe and electronic gaming machines in the case of Aristocrat.

A change in law (if any) would be some time away, since the High Court first needs to grant Special Leave and then if granted, consider the case. We might see the result of the Special Leave applications sometime this year.

Grant of Special Leave applications are relatively rare, since the High Court must be satisfied the appeal involves a question of general principle of law sufficient to warrant the grant of special leave or be in the public interest. 

BCSE(Hons) MIP FIPTA

Mark’s academic background is in computer science and electrical engineering. He assists clients in obtaining and enforcing their intellectual property rights in the areas of software, electronics and engineering. Prior to joining Phillips Ormonde Fitzpatrick, Mark worked for a leading automotive manufacturer.