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Key takeaways
- The High Court of Australia (all 7 Judges) has refused the Commissioner of Patents' application for special leave to appeal the Full Federal Court's September 2025 decision in the long-running Aristocrat litigation.
- This refusal means the Full Court's September 2025 reasoning remains the leading authority on the patent-eligibility of computer-implemented inventions (CII) in Australia.
- This outcome is a significant and positive development for companies seeking to protect CII in Australia, clarifying threshold bars to patentability.
- Patent applicants and owners should review their existing and future portfolios in light of this development and consider practical steps to optimise their protection, including licensing terms and opportunities.
- Companies whose products or services involve computer implementation should review their freedom to operate in light of third party Australian patents that may now be deemed patent-eligible.
High Court refuses special leave | What this means
On 5 February 2026, the High Court of Australia refused the Commissioner of Patents' application for special leave to appeal the Full Federal Court's decision in Aristocrat Technologies Australia Pty Ltd v Commissioner of Patents [2025] FCAFC 131. The refusal of special leave effectively means that the Full Court's September 2025 judgment (on which we reported here) stands as the definitive statement of Australian law on the patent-eligibility of computer-implemented inventions.
The High Court's published disposition of the Commissioner's special leave application is concise (published here, notably from all 7 High Court Judges: Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot and Beech-Jones JJ) and does not include its own detailed reasoning. Rather, the disposition reads, in its entirety:
- The applicant seeks special leave to appeal from the judgment of the Full Court of the Federal Court of Australia (Beach, Rofe and Jackman JJ) which allowed the respondent's appeal from a judgment of the Federal Court of Australia (Burley J) concerning the assessment of manner of manufacture under s 18(1A)(a) of the Patents Act 1990 (Cth). The decision of Burley J was given following remitter after an earlier judgment of a differently constituted Full Court (Middleton, Perram and Nicholas JJ) in the same matter was affirmed by operation of s 23(2)(a) of the Judiciary Act 1903 (Cth) due to an equal division of the members of this Court in Aristocrat Technologies Australia Pty Ltd v Commissioner of Patents (2022) 274 CLR 115.
- 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. There is therefore no utility in a grant of special leave to consider the operation of rules of precedent concerning s 23(2)(a) of the Judiciary Act.
- Special leave to appeal is refused with costs.
The High Court's refusal to intervene is an endorsement of the Full Court's approach, which adopted and applied the reasoning of Gordon, Edelman and Steward JJ in the earlier (2022) split High Court decision, on which we reported here. In practical terms, this brings much-needed clarity and certainty to the assessment of patentable subject matter for CII in Australia.
Consequences for patent-eligibility of Computer-Implemented Inventions
The Full Court's decision, now in effect affirmed by the High Court's refusal of special leave, marks a decisive shift away from the restrictive "two-step" test previously applied by the Federal Court in a series of cases during the past 2 decades. That test, which required an advance in computer technology itself, had often been perceived as penalising patentees whose claims included generic computer technology as part of otherwise new and innovative methods.
Under the Full Court's approach, the focus is on the substance of the invention as claimed, considering all claim elements, including those implemented using generic computer hardware and software. The key question is whether the claimed invention, as a whole, produces an artificial state of affairs and a useful result, rather than being a mere abstract idea or scheme implemented on a computer.
The critical question remains how the invention, as claimed in each claim, is properly characterised, but it is now clear that the entire combination of features claimed should be assessed rather than applying an additional test (whether there is an advance in computer technology) for claims deemed to be directed to abstract ideas implemented by computer technology.
The singular question and more holistic approach adopted by the Full Federal Court in September 2025 (which remains the prevailing authoritative decision now that special leave has been refused by the High Court) effectively removes the threshold bar that previously excluded many CII from patent protection in Australia.
It is now clear that inventions involving the implementation of new and innovative methods using computer technology should not be excluded from patent eligibility for that reason, regardless of whether the computer elements themselves are novel, and their validity should be assessed by patent examiners and courts in the same way as for other inventions and can be patent-eligible. Claims to an invention that is simply an abstract idea will however remain ineligible for patent protection in Australia.
A positive development for innovators and patent applicants
The High Court's refusal to question the Full Court's reasoning is a welcome development for companies innovating in software, digital platforms, gaming, fintech, and other technology-driven sectors. It provides a more predictable and commercially realistic framework for the protection of computer-implemented inventions in Australia.
It remains to be seen whether and how IP Australia might update its Patent Manual of Practice and Procedure to provide its examiners and patent applicants with practical guidance as to how patent applications with CII claims will be examined going forward.
Subject to that, applicants and owners of Australian patents should now be able to proceed with greater confidence that their inventions will not be excluded from patentability simply because they are implemented using generic computer technology. This is particularly important for those whose business models and competitive advantage depend on the ability to secure robust patent protection for software-enabled innovations.
Practical and strategic next steps
In light of this development, companies with existing or prospective interests in computer-implemented inventions should consider the following practical and strategic steps:
1. Review existing patent portfolios
- Revisit any previously rejected or abandoned Australian patent applications for CII, as these may now be eligible for protection under the clarified law (although extensions of time may be required and are not guaranteed to be granted).
- Consider whether divisional applications or re-filing may be appropriate for inventions previously deemed unpatentable.
2. Optimise drafting of new applications
- Ensure that patent specifications clearly describe the technical implementation and practical advantages of the invention, not merely the underlying idea or scheme.
- Draft claims to encompass the full scope of the invention, including the interaction between software and hardware elements, and the resulting artificial state of affairs or useful result.
- Avoid characterising the invention solely in terms of abstract ideas or business methods.
3. Filing strategies
- Consider filing innovation patents (while still available) or standard patents for CII, taking advantage of the clarified eligibility criteria.
- For international applicants, coordinate Australian filings with global strategies, noting these issues of CII patent-eligibility remain in flux and are often difficult to navigate in other jurisdictions such as the US and Europe.
4. Monitor developments
- Stay abreast of any further guidance from IP Australia and the Federal Court as the new approach is applied in examination and litigation.
- Engage with patent attorneys and legal advisers to ensure that applications and enforcement strategies reflect the latest legal position.
5. Revisit and proactively consider Freedom to Operate
- The potential validity of competitor patents for CII could be significantly impacted by the Full Court's September 2025 reasoning effectively being confirmed as the authoritative test for patent-eligibility in Australia. Companies operating in a range of industries in which computer implementation is critical to daily operations or to providing competitive advantages would be wise to revisit previous assessments of the competitor patent landscape to understand whether their existing or planned product or service offerings might face increased infringement risks.
6. Consider licensing arrangements and opportunities
- Australian patents (or portfolios of patents) already being licensed or being contemplated for licensing may become more valuable following the Full Court's September 2025 reasoning effectively being confirmed as the authoritative test for patent-eligibility in Australia. Owners of Australian CII patents and companies developing CIIs with commercial potential in Australia would be prudent to audit their position and consider how they can improve their position within existing or potential licensing arrangements. Customers licensing third-party Australian CII patents should be mindful of this decision in assessing their license terms.
Where to from here?
The High Court's refusal of special leave in the Aristocrat litigation brings long-awaited clarity (though perhaps not certainty) to the patent-eligibility of computer-implemented inventions in Australia. The Full Court's September 2025 approach, now standing as the most authoritative decision without no further avenues for review on appeal, removes previously problematic threshold bars and opens the door to broader protection for software-enabled innovations.
Companies innovating in this space should act promptly to review and optimise their patent portfolios, ensuring that their valuable inventions are protected in line with the new legal landscape.
For tailored advice on protecting your computer-implemented inventions in Australia, or for assistance with drafting and filing strategies, please contact our specialist patent attorneys and lawyers.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
