High Court Refuses Special Leave in Aristocrat: A New Era for Software Patents

The recent development in Australian patent law concerning the patentability of computer-implemented inventions (CIIs) marks a significant milestone. On February 5, 2026, the High Court of Australia refused the Commissioner of Patents' application for special leave to appeal in Commissioner of Patents v Aristocrat Technologies Australia Pty Ltd [2026] HCA (special leave refusal). This decision finalises the Full Federal Court's ruling in Aristocrat Technologies Australia Pty Ltd v Commissioner of Patents [2025] FCAFC 131, bringing long-awaited clarity to a decade of uncertainty in this area.

Background to the Aristocrat Litigation

The saga began in 2017–2018 when IP Australia (via the Commissioner of Patents) refused four innovation patents held by Aristocrat Technologies Australia Pty Ltd. These patents related to electronic gaming machines (EGMs), specifically features involving configurable symbols, feature games, and an interdependent player interface and game controller.

The refusals were based on the inventions not constituting a "manner of manufacture" under section 18(1A)(a) of the Patents Act 1990 (Cth)—the key requirement for patentable subject matter in Australia. The case progressed through the courts, culminating in a split 3-3 decision by the High Court in 2022 (Aristocrat Technologies Australia Pty Ltd v Commissioner of Patents [2022] HCA 29). With no majority, the Full Federal Court's earlier decision (favoring the Commissioner) stood under section 23(2)(a) of the Judiciary Act 1903 (Cth).

Following remittal, the Full Federal Court in 2025 delivered a unanimous decision in Aristocrat's favor. It rejected the need for a separate "advance in computer technology" test and focused on proper characterization of the invention as a whole.

The Full Federal Court's Approach in 2025

The Full Court (Beach, Rofe, and Jackman JJ) emphasized that the computer is merely a tool, not a distinct legal category requiring special scrutiny. The core question is whether the properly characterized subject matter is:

• (i) an abstract idea manipulated on a computer, or
• (ii) an abstract idea implemented on a computer to produce an artificial state of affairs and a useful result.

Key observations from the judgment include:

• Asking whether the invention represents an "advance in computer technology" (as opposed to gaming technology or another field) is "neither necessary nor helpful."
• Technological innovation can exist in the relevant field (e.g., gaming systems) even without an advance in computer hardware or software per se.
• Patentable subject matter may arise from how a gaming machine or system functions, regardless of whether a computer engineer views it as a computer advancement.
• Simply implementing an abstract scheme on a generic computer does not alter its fundamental (unpatentable) character.

In Aristocrat's case, the invention was characterized as "an EGM incorporating an interdependent player interface and a game controller which includes feature games and configurable symbols." This interdependence produced a concrete, useful outcome in the gaming context, satisfying the manner of manufacture requirement.

High Court Refuses Special Leave – February 2026

The Commissioner sought special leave to appeal the 2025 Full Federal Court decision. The High Court refused, stating:

“In light of the background to this application, there is insufficient reason to doubt the correctness of the decision of the Full Court. A grant of special leave to appeal is not in the interests of the administration of justice in circumstances in which that Full Court applied established principles concerning the assessment of manner of manufacture and reached a unanimous and clear conclusion as to characterisation.”

This refusal endorses the Full Court's reasoning and approach, leaving it as authoritative guidance.

Implications for Innovators and Patent Practice

This outcome provides greater certainty for applicants in fields involving software and computer implementation, such as gaming, fintech, software solutions, and other technologies.

• More applicant-friendly eligibility assessments — Fewer automatic objections on subject matter grounds are likely, as examiners and courts should follow the holistic characterization approach rather than rigid "computer-implemented" filters.
• End of a distinct "CII" category — Commentators note that Australian law no longer treats "computer-implemented inventions" as a separate class requiring unique tests. The orthodox approach—characterize the invention in substance and context, then apply established manner of manufacture principles—prevails.
• Practical effects — IP Australia's Patent Manual of Practice and Procedure (which previously included specific guidance on CIIs, schemes, and business methods) may see updates to align with this precedent, potentially removing or reframing outdated categories.
• Case-by-case focus — Not every software-related invention will succeed; patentability still hinges on whether the claim as a whole produces a useful, artificial state of affairs beyond mere information processing or abstract schemes.

For businesses developing or protecting software-driven innovations in Australia, this development strengthens the prospects of securing valid patent protection where the invention delivers a tangible, useful outcome through computer implementation.

At Baxter IP, we closely monitor these evolving precedents to advise clients on strategic patent drafting and prosecution. If your business involves computer-implemented technologies, now is an opportune time to review your IP portfolio and consider new filings with confidence in the clarified legal landscape.

For tailored advice on how this ruling may impact your specific inventions, contact the team at Baxter IP.