2025 Patentability of computer-implemented inventions in Australia

UPDATE (5 February 2026): As of 5 February 2026 there is now definitive confirmation via the conclusion of the Aristocrat litigation that the law of patent eligibility returns to 'established principles', thus providing a more generous framework for patent applicants. Refer to commentary after 5 February 2026 that takes into consideration this important development.

What can you expect from the Australian Patent Office in 2025 for patent applications for computer-implemented inventions? Yes, many applications are being rejected, and inevitably so it seems.

Computer-implemented inventions are entirely patentable in Australia, as with United States and Europe and elsewhere. But so many applications are rejected during Patent Office examination and appeals hearings owing to perceived problems on the ground of patent eligibility.

Applications that go to hearing are being refused as schemes

Applications are being refused as mere schemes.

Mere schemes?! What can this mean? Surely our invention is not a.. mere scheme!

Well, innovations that use existing computing hardware—without any innovation to the underlying hardware—are most vulnerable to rejection for being a mere scheme.

So very often the value proposition might be quite compelling. And indeed, sufficiently compelling that a patent was sought in the first place. And yet, the application is found not to be patentable.

Business innovation versus technical innovation

The bottom line is the Australian Patent Office will very often view a patent application as not patentable unless there is some innovation in the underlying hardware. The rationale is that use of existing hardware is in the category of a business innovation rather than a technical innovation.

And the rejection is framed with this unfortunate language of a mere scheme.

The fact so many Australian applicants are still being caught unaware by these requirements suggests that the requirements are somewhat perplexing to understand!

So what is the disconnect?

All the examples below are drawn from Patent Office appeal hearings and all concern technology-orientated solutions.

These decisions are however going against applicants because the innovation is not viewed as concerning any underlying technology but rather in the business application of existing technology.

Lessons for companies looking to patent their digital innovation in Australia

How can companies approach patents applications that stand the best chance of success in Australia?

You do not want to prepare an application that will be inevitably rejected.

First, ensure that you have a new and non-obvious development in the realm of technical innovation, not just business innovation.

Second, ensure that the application suitably captures all the details of the underlying technical innovation rather than just describing and depicting the overall business innovation.

This means a close collaboration with the development team as well as managers to extract the invention in sufficient technical depth. This is necessarily a very light treatment as it is not the focus here.

But suffice to say, you need to check if you have a qualifying invention, and then do the hard work to document a high quality patent application that will stand the best chance of success.

Ideally, you should be consulting the list of screening factors below and be confident of clearing all of the factors listed.

Factors separating business innovation from technical innovation

So how is this distinction made between technical innovation and business innovation? The non-exhaustive relevant factors are—

• there must be more than an abstract idea, mere scheme or mere intellectual information;
• is the contribution of the claimed invention technical in nature;
• does the invention solve a technical problem within the computer or outside the computer;
• does the invention result in improvement in the functioning of the computer, irrespective of the data being processed;
• does the application of the method produce a practical and useful result;
• can it be broadly described as an improvement in computer technology;
• does the method merely require generic computer implementation;
• is the computer merely an intermediary or tool for performing the method while adding nothing of substance to the idea;
• is there ingenuity in the way in which the computer is utilised;
• does the invention involve steps that are foreign to the normal use of computers; and
• does the invention lie in the generation, presentation or arrangement of intellectual information.

This list is drawn from an appeals decision from 2016 concerning gaming machines. Aristocrat Technologies Australia Pty Limited [2016] APO 49 (22 July 2016), a Patent Office hearing decision which has since become known as Aristocrat 16, casts a long shadow over the current treatment of computer-implemented inventions in Australia.

Will things change in for applications during 2025?

Unlikely. Though all it would take for the status quo to change and change quickly would be a Federal Court or High Court decisions affecting the interpretation of current patent law. There is some pending and outstanding patent litigation from ongoing Aristocrat matters that inform the current framework, so watch this space. When the High Court last looked at this issue in 2022, the bench was evenly split and so the status quo remains at least for the time being.

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