Patentability of Software and Computer-Implemented Inventions

Important notice regarding patentability risk

The patentability of software, algorithms and other computer-implemented inventions is a complex, developing and jurisdiction-specific area of law. Whether a given invention qualifies for patent protection depends on how it is characterised, how it is claimed and drafted, and the examination practice and case law of each country in which protection is sought — all of which continue to evolve. This notice sets out the principal risks so that you can make informed decisions about your intellectual property. It does not limit any advice we give on your specific circumstances.

1. Subject-matter eligibility is a distinct hurdle. Even where an invention is new and inventive, it must also be for patent-eligible subject matter. Software and business-method inventions attract particular scrutiny on this ground, and an invention may satisfy novelty and inventive-step requirements yet still be refused because, as a matter of substance, it is regarded as a mere scheme, abstract idea, mathematical method or item of information implemented on a computer.
2. Australia. Patentability requires a "manner of manufacture" under section 18(1A)(a) of the Patents Act 1990 (Cth). Following the Full Federal Court's decision in Aristocrat Technologies Australia Pty Ltd v Commissioner of Patents [2025] FCAFC 131 — now the governing authority after the High Court refused the Commissioner special leave to appeal on 5 February 2026 — eligibility is determined by characterising the claimed invention as a whole and asking whether it is an abstract idea merely manipulated on a computer (not patentable) or one implemented on a computer to produce an artificial state of affairs and a useful result (patentable); the earlier requirement for an "advance in computer technology" has been rejected. While this is generally a more favourable position for software inventions, eligibility is still assessed case-by-case, and IP Australia's examination practice may lag the current law — the Patent Manual continues to be refined and remains the subject of stakeholder submissions, and eligibility objections may still be raised during examination. Novelty, inventive step, clarity, sufficiency and support requirements apply independently.
3. Inventions involving artificial intelligence. Under Australian law an inventor must be a natural person; an AI system cannot be named as an inventor, and the same position now applies in a number of other jurisdictions. Where AI tools are used in the conception or development of an invention, questions of inventorship, entitlement and adequate disclosure may arise and should be discussed with us before filing.
4. International risk. Standards differ materially between countries, and a grant or favourable opinion in one jurisdiction does not guarantee the same outcome elsewhere. In the United States, eligibility is governed by the Alice/Mayo framework under 35 U.S.C. § 101; claims directed to an abstract idea are ineligible unless they amount to more than generic computer implementation, the law remains unsettled, and examination guidance continues to change. In Europe (European Patent Office), the invention must have technical character and, on inventive step, only features making a technical contribution are taken into account — non-technical features are disregarded. In China (CNIPA, revised examination guidelines effective 1 January 2026), algorithmic or business-rule features support patentability only where they functionally interact with technical features to solve a technical problem, with heightened inventive-step and disclosure requirements. Protection strategy and claim drafting should be tailored to each jurisdiction.
5. No warranty as to outcome. Careful characterisation, drafting and prosecution can materially improve prospects, but no patent attorney can guarantee results in this area. Accordingly, we give no warranty or guarantee that any software or computer-implemented invention is or will be patentable, that any application will proceed to grant, or that any patent granted will be valid or enforceable. Any views we express reflect our professional assessment of the law and practice as at the date given and are subject to change as the law, guidelines and case law develop.

This notice is of a general nature, does not constitute exhaustive advice on any particular invention, and should be read together with our engagement terms and any specific advice provided to you.