Software that’s plainly unpatentable

Software that’s plainly unpatentable – 20 May 2016

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In recent years, we have followed developments in Australian jurisprudence in connection with computer implemented business methods. Late last year we reported (here) a decision of the Full Federal Court [1] which made clear that the mere use of routine computing functions is not sufficient to render a mere scheme patentable.

The High Court [2] has now refused an appeal in respect of that decision and in doing so has affirmed the earlier decision in a simple, two point ‘judgement’ [3]:

  1. This is an application for special leave to appeal from the decision of the Full Court of the Federal Court of Australia (Kenny, Bennett and Nicholas JJ), allowing an appeal from the decision of Middleton J.
  2. The Full Court was plainly correct and, accordingly, none of the applicant’s proposed grounds of appeal enjoys sufficient prospects of success to warrant the grant of special leave to appeal. Pursuant to r 41.11.1 of the High Court Rules 2004 (Cth), we direct the Registrar to draw up, sign and seal an order dismissing the application with costs.

(Our emphasis.)

Thus our earlier comments (for example here and here) stand, and we continue to watch for further instalments in the saga. On the one hand, one might hope that such an affirmation would lead to a period of stability and legal certainty. On the other hand, the affirmed decision suggests that ‘It is not a question of stating precise guidelines’, and in absence of precision further controversy may not be too far away.

[1] The Court of first appeal for Australian patent matters
[2] Australia’s most authoritative Court
[3] RPL Central Pty Ltd v Commissioner of Patents [2016] HCASL 84 (5 May 2016)

Authored by

Ben Mott Patent Attorney & Mechanical Engineer Ben Mott

Mechanical Engineer & Patent Attorney