Patent Protection for Software and Apps in Australia: What You Need to Know

In today’s digital world, software and mobile apps have become the core of many successful businesses. But with innovation comes competition—and protecting your original software creations is important for maintaining your edge. One common question Australian business owners ask is, “Can I patent my software or app?”

The answer isn’t always straightforward, but understanding the basics of patent protection for software can help you decide whether it’s the right path for your business.

Patent Basics

A patent is a form of intellectual property (IP) right that protects an invention, such as a device, substance, method, or process. To be patentable in Australia, the invention must satisfy several conditions, including:

that the invention is different from any prior art inventions (novelty),
that the invention is not obvious to a skilled person when compared to the prior art inventions (inventive step),
that the invention is useful and achieves its promised benefits (usefulness), and
that the invention has not been secretly used before the priority date of the patent application.

As a patent owner, you have the exclusive right to exploit your invention in the country where the patent is granted for up to 20 years from the filing date of the patent application. A patent can therefore deter your competitors from making, selling, or using the patented invention without your permission, giving you a competitive advantage in the market over a substantial period.

Patenting A Software in Australia

In addition to the above conditions, in Australia, a patentable invention must qualify as a “manner of manufacture”. This requirement prevents certain products of human ingenuity, such as business schemes and mathematical algorithms, from being patented in Australia.

The Australian Patent Office and the Australian courts have consistently held that:

Merely taking an abstract idea and implementing it on a computer does not make it patentable.
Business methods, financial schemes, or administrative processes are generally not able to be patented unless they involve a technical contribution.
To qualify as a manner of manufacture, the invention must solve a technical problem using technical means.

In practice, this means that patentable software or apps must go beyond simply instructing a computer to perform a known function.

Examples of software or apps that are likely to be patentable include:

A new way of operating a computer that improves the computer’s processing speed.
A new computer program that reduces the amount of memory required to process images.
A new app for encrypting and transmitting data that enhances security and efficiency.

Alternatively, examples of software or apps that are unlikely to be patentable include:

An online platform that matches customers and service providers using conventional database queries.
An app that digitizes an existing manual process without introducing a new technical effect.
A business model carried out with generic computer technology.

In order to patent your software or apps in Australia, it is critical that you must identify a technical problem that the software or app solves and any new or ingenious operations that the software or app causes a computing device to perform.

Patents vs. Copyright vs. Trade Secrets

Many businesses adopt a mixed IP strategy, combining patents with copyright and trade secrets to safeguard their software and apps.

Patents – Protect the functional aspects of the software or app (e.g., control processes and system architecture) that meet the above patentability requirements.
Copyright – Protects computer code and other creative elements (such as graphics, text, and sound files).
Trade Secrets – Protect valuable confidential information, such as proprietary algorithms and AI training data, provided measures are established to preserve the secrecy of the information.

You can use these rights in combination to build a layered IP strategy, valuable not only to you, as the owner of the IP, but also to your business’s investors.

Contact the Authors for more questions: Mattia Pagani and Walter Xie

Steps to Protect Your Software or App

The following steps can increase your chances of successfully commercialzing your software or apps:

Documenting the software or app’s development – Keeping detailed records of how the software or app works, the problems it solves, and the development process. This can help support a patent application and defend against disputes later.
Searching – Checking whether similar software or apps have already been patented, commercialized, or presented publicly via any medium. This helps to gauge whether your software or app is likely to be considered novel and inventive.
Filing a provisional patent application – Filing a provisional patent application secures a priority date for inventive features of your software or app. Even before a patent is granted, a pending patent application can deter your competitors and attract investors. On this note, it is normally a good idea to file the provisional patent application before presenting your software or app to others, including investors. An experienced patent attorney in Australia can help to identify the features of the software or app most likely to be suitable for patent protection.

Conclusion

Patent protection for software and apps is possible in Australia, but it comes with unique challenges. The manner of manufacture requirement means that not every software or app will qualify for patent protection, but software and apps that provide a genuine technical solution to a technical problem are likely to be eligible for patent protection.

Patents, however, rarely stand alone. A strong IP strategy often layers multiple IP rights, such as patents, copyrights, and trade secrets. This layered approach maximizes protection for the various components of software or apps, including those, such as computer code and data, which are typically not suitable for patent protection.

Given the complexity of this area of law, the best step you can take is to seek professional advice early. At Halfords IP, we have broad experience in assisting software and app creators to protect their creations.