{"id":8453,"date":"2026-02-12T14:09:22","date_gmt":"2026-02-12T01:09:22","guid":{"rendered":"https:\/\/www.jamesandwells.com\/aristocrat-high-court-2026-software-patent-eligibility-australia\/"},"modified":"2026-02-12T15:40:24","modified_gmt":"2026-02-12T02:40:24","slug":"aristocrat-high-court-2026-software-patent-eligibility-australia","status":"publish","type":"post","link":"https:\/\/www.jamesandwells.com\/au\/aristocrat-high-court-2026-software-patent-eligibility-australia\/","title":{"rendered":"High Court Backs Aristocrat: What This Decision Means for Software Patents in Australia"},"content":{"rendered":"
(Commissioner of Patents v Aristocrat Technologies Australia Pty Ltd ACN 001 660 715 [2026] HCADisp 15 (5 February 2026))<\/strong><\/h5>\n

It has now been a week since the High Court of Australia (HCA)<\/a> handed down a decision effectively finding that Aristocrat\u2019s new game in an otherwise \u201cgeneric\u201d electronic gaming machine (EGM), or poker machine, is patentable.<\/p>\n

 <\/p>\n

This is an important legal decision because it goes against the flow of recent cases in Australian courts that reduced the scope of patent-eligible subject matter, or \u201cmanner of manufacture\u201d as we know it here.\u00a0 As far as I can tell, this is the very first time the HCA has effectively expanded the scope of patentable-eligible subject matter in the software space, even if this decision is specific to EGMs rather than all computers.\u00a0 The scope of what is patentable in Australia is now broader; however, it will take time for the Australian Patent Office to adapt to the new broader approach.<\/p>\n

\u00a0The Court\u2019s new approach to software patent eligibility<\/strong><\/h5>\n

The HCA has approved a new approach developed by the Australian Full Federal Court<\/a>, in Aristocrat Technologies Pty Ltd v Commissioner of Patents [2025] FCAFC 131<\/em> (Beach, Rofe and Jackman JJ), which rejected narrower approaches from earlier court decisions.<\/p>\n

The newly approved approach seems to be [FCAFC 127, 131]:<\/p>\n

    \n
  1. consider the patent claim as a whole, including inventive and non-inventive features; and<\/li>\n
  2. consider whether the claimed invention produces an artificial state of affairs and a useful result.<\/li>\n<\/ol>\n

    In doing so, the Court distinguished between \u201c(i) an abstract idea which is manipulated on a computer\u201d <\/em>[not patentable]; and \u201c(ii) an abstract idea which is implemented on a computer to produce an artificial state of affairs and a useful result\u201d<\/em> [patentable] [FCAFC 131].<\/p>\n

    In relation to Aristocrat\u2019s specific EGM invention, the approach preferred by the Full Court was explained as follows [FCAFC 127]:<\/p>\n

      \n
    1. characterise the patent claim \u201cas a whole, encompassing the combination of both the inventive and the non-inventive elements<\/em>\u201d due to \u201cemphasis in the [patent] specification not just on the feature game but also on the function and display of configurable symbols in relation to the feature game, and the integration of those elements in the interdependent player interface and game controller<\/em>\u201d;<\/li>\n
    2. consider \u201cevidence \u2026 that the configurable symbols, particularly the prize values overlaid on them, are a significant enhancement of a player\u2019s experience<\/em>\u201d; and<\/li>\n
    3. consider that \u201cthe configurable symbols and the feature games require implementation in the EGM, and in the operation of the EGM, they interact with, and are entirely dependent upon, other integers of the claim, especially the physical integers, and therefore are inextricably connected with the player interface<\/em>\u201d.<\/li>\n<\/ol>\n

      Importantly, the Court noted that this approach \u201cdoes not give undue or preponderant weight to the inventive aspects of the claim over the non-inventive aspects, and gives due recognition to those physical elements which are non-inventive yet fundamental to the operation of the EGM<\/em>\u201d.<\/p>\n

      The Full Court rejected the \u201ctoo rigid and narrow [\u2026] approach<\/em>\u201d adopted by recent court cases rejecting software patent cases, including RPL Central<\/em>, Encompass<\/em>, and Rokt,<\/em>\u00a0that required an improvement in \u201ccomputer technology<\/em>\u201d for an invention to be patent eligible.<\/p>\n

       <\/p>\n

      How IP Australia may respond in examination practice<\/strong><\/h5>\n

      The Patent Office<\/a> has indicated it will reflect on the decision and consider whether it will update its examiners\u2019 manual. \u00a0I am keen to see whether the changes will reflect a broader approach.<\/p>\n

      Whilst the Patent Office updated the examiners\u2019 manual after the Full Court decision to refer to the approach adopted by the Full Court, my reading of the manual leads me to conclude that the Office has so far failed to fully implement the new approach.\u00a0 For example, in the guidelines for examining games and gaming machines, the Office writes: \u201c[w]here a game is implemented on a machine with interdependent physical features then patentability may be found<\/em>\u201d, which concurs with the Aristocrat<\/em> decision; however, the Office has added its own guidance, not from the Full Court: \u201cThis is to be contrasted with a game on a generic computer system where an invention is likely not directed towards a manner of manufacture.<\/em>\u201d\u00a0 There are similar statements in the guidelines for examining computer-implemented inventions.\u00a0 The Office also writes\u00a0 \u201cThe Full Court in Aristocrat \u201825 also noted (at [132]) that assessing an invention according to the above principles is in keeping with prior authorities on manner of manufacture<\/em>\u201d; however, the Full Court only noted that the results<\/em> of prior authorities were correct, not their principles<\/em>, and, in my reading, the Full Court actually found the approach of such prior authorities to be too rigid and narrow.\u00a0 Accordingly, we can hope the examiners\u2019 manual will be updated soon.<\/p>\n

       <\/p>\n

      \u00a0What software innovators and patent applicants should do now<\/strong><\/h5>\n

      More software inventions should be patentable after this decision, even when there is not a very clear improvement in computer technology.\u00a0 For example, it might be sufficient to identify an output or effect of the software that is connected to a physical feature\u2014even if that feature is itself uninventive\u2014and then explain how the output or effect is a significant and useful result in a field of economic endeavour.\u00a0 It might be necessary to emphasise in the patent specification that there is an interaction, integration, interdependence and inextricable connection between the inventive and non-inventive elements, and to provide evidence of a significant effect, perhaps analogous to the enhanced player experience in Aristocrat.<\/p>\n

       <\/p>\n

      If you develop software or gaming technologies, and are unsure how Aristocrat<\/a> affects your patent strategy, seek specific advice. I regularly advise in respect of computer\u2011implemented inventions, and can help position your applications in line with the new approach.<\/p>\n

       <\/p>\n

      Work with specialists in computer<\/strong>\u2011implemented inventions<\/strong><\/h5>\n

      I am interested in your experiences with the Office, so please let me know<\/a> confidentially.\u00a0 With like-minded Australasian attorneys, I am working with a Computer-Implemented Inventions Taskforce (CIITF) to improve users\u2019 experience with the Office in this technology space.<\/p>\n

       <\/p>\n

      \u201cRPL Central<\/em>, Encompass<\/em>, and Rokt<\/em>\u201d;<\/p>\n