A win for software patents at the High Court

Patenting software in Australia could soon become more straightforward following a decision last week by the High Court of Australia (see [2026] HCADisp 15).

The High Court decision refuses a request made by the Commissioner of Patents to appeal the judgement of Aristocrat Technologies Australia Pty Ltd v Commissioner of Patents [2025] FCAFC 131.

The request was made by the Australian Commissioner of Patents, who was seeking to overturn a ruling by the Full Court of Australia’s Federal Court that an electronic gaming machine with conventional hardware and new software was patent-eligible subject matter.

The approach that the Full Court had taken to analyse the patent-eligibility of the electronic gaming machine is not the traditional approach of the Australian Patent Office. One key difference is that the Full Court took into account the hardware of the machine, which, though not new, was recognised to be fundamental to the machine’s operation. Another key difference is that the Full Court applied a new test that asks whether an abstract idea implemented on a computer produces an artificial state of affairs and a useful result. You can read more about the Full Court’s judgement in our previous article.

The High Court refused the Commissioner’s request on the ground that “there is insufficient reason to doubt the correctness of the decision of the Full Court”, thus effectively sanctioning the Full Court’s approach to patent-eligibility analysis.

Since the High Court’s decision, the Australian Patent Office has announced that it will now ensure that its practice reflects the Full Court’s judgement. If the Patent Office adopts the Full Court’s approach, the prospects of many software inventions for patent protection in Australia would be significantly improved.