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January 7, 2026

2026 Outlook for software patents in Australia

There are important and favourable developments for software patent applicants in Australia coming into 2026, of which you should be aware.

David Perkins

Founder & Principal

The new year 2026 starts afresh with three critical developments for the outlook for computer-implemented inventions in Australia. First, Aristocrat 2025 issued 16 September 2025 and its implications will start to surface. Second, the Patent Office released revised examination guidelines for computer-implemented inventions 14 October 2025, and we will see how the changes start being applied in practice. Third, it remains to be seen how the test of an abstract idea manipulated vs implemented on a computer will actually applied in Patent Office examination an hearings.

Finally, a wildcard: the Patent Office has requested Special Leave to the High Court of Australia for the High Court to consider an appeal to the decision of Aristocrat 2025, which will either stay the course of the current law or revert to the norms of the last decade.

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 we know right now

Aristocrat 2025¹ is the prevailing law on patent eligibiility for computer-implemented inventions.
Examination guideline amendments of the Australian Patent Office recognise Aristocrat 2025 at least in name, but fall short of embracing its full implications.
How Aristocrat 2025 is applied in practice in light of revised examination guidelines, especially the test of manipulated vs implemented on a computer is yet to be seen.
High Court Special Leave may or may not be allowed, and even if the appeal is heard it is just as likely if not more likely to affirm Aristocrat 2025.

Immediate implications

So Aristocrat 2025¹ now offers patent applicants a more favourable examination environment. Some uncertainty remains however as the High Court appeal may or may not be allowed, and the possible High Court appeal may or may not affirm the current position.

The examination guidelines—despite the recent concessionary amendments—currently signal a reluctance on the part of the Patent Office to embrace wholeheartedly the new law of Aristocrat 2025¹. There may be lingering reluctance to follow Aristocrat 2025 until Special Leave is refused or the High Court affirms Aristocrat 2025¹. Aristocrat 2025¹ essentially reversed over a decade of unhelpful decisions in the area of software patents in Australia. This should result in more reliably fair and favourable treatment of computer-implemented inventions.

Will this be the case?

Aristocrat 2025: how we got here

The background to Aristocrat 2025¹ is many years of computer-related patent applications facing rejection during examination and hearings as an abstract idea, or mere scheme, drawing from a succession of adverse decisions. Aristocrat 2025 clarified than key decisions were correctly made, but for reasons that were overstated, and with the implication that many applications that were for legitimately patent eligible subject matter were unfairly rejected. Aristocrat 2025¹ can be viewed as returning the law to what it has always been manner of manufacture requires only an artificial state of affairs and a useful result.

Aristocrat 2025¹ at [131] endorsing Aristocrat 2022² at [121]–[122] (of the 'allowing reasons') confirms the view there is now a simpler view of patentability:

Is the subject matter that is alleged to be patentable:

(i) an abstract idea which is manipulated on a computer; or

(ii) an abstract idea which is implemented on a computer to produce an artificial state of affairs and a useful result.

The former is said not be patentable, the latter is said to be patentable. Unfortunately, the manipulated versus implemented dichotomy is not the clearest or cleanest distinction on its face. Th distinction relies upon a lot of background context, and in effect interpretation via particular case law examples. Alas, this provides fertile ground for further argument, with the risk of continuing the existing debate, just with a lateral shift to different semantic parameters.

This is what we can refer to as the Aristocrat/NRDC test, as Aristocrat 2025¹ leans on Aristocrat 2022², which in turn ultimately finds basis on the landmark High Court decision of NRDC³ on patent eligibility.

The formulation does not make sense in isolation.

First, it assumes that you have an abstract idea, which is inherently a strange place to start.

Second, what does manipulated mean here, and how do you manipulate an abstract idea, exactly?

Third, what does implemented mean (in contradistinction to manipulated)?

And what is the production of an artificial state of affairs and a useful result. This language at least clearly attaches to earlier legal precedent.

Finally, it is implied that the distinction is binary, and not one of many categories.

Overall, the formulation would seem to create more problems than it solves.

You might assume that the distinction between manipulated vs implemented is defined by the artificial result and useful result, which is the conventional placeholder for patentable subject matter. And this is very well well where the distinction may land.

And thankfully, the formulation offers examples that provide some guardrails to how we may distinguish between an implemented idea and a merely manipulated idea.

Patentable examples and counterexamples

Patent eligible cases

IBM ⁴— an invention for efficiently rendering a curve on a computer display
CCOM ⁵— an invention for selecting Chinese characters based upon character stroke-types in a word processor

Patent non-eligible cases

Grant ⁶— a scheme for protecting assets from unsecured judgment creditors
Research Affiliates ⁷—a scheme for constructing data concerning a non‑capitalisation weighted portfolio of assets
RPL Central ⁸— a scheme for assessing the competency or qualification of people in accordance with recognised standards
Encompass ⁹— a method and apparatus for displaying information to provide "business intelligence"
Rokt ¹⁰— a marketing scheme

Patent claim language examples of patent eligible cases

‍IBM—an invention for efficiently rendering a curve on a computer display

A method for producing a visual representation of a curve image from a set of control points which define the curve and which are input for each dimension and a number of intervals of the curve to be computed, said method comprising the steps of:

(a) computing a set of scaled vector coefficient integers for each dimension from the set of input control points for that dimension and from a scaling parameter;

(b) computing forward difference interval coefficient integers for each dimension for each interval from the scaled vector coefficient integers for that dimension and the interval integer number;

(c) computing the curve coordinate values for each interval for each dimension from the forward difference interval coefficient integers for that dimension for each interval and the scaling parameter; said computing steps being carried out without the use of floating point arithmetic; and

(d) displaying the curve by displaying curve coordinate points in accordance with the computed curve coordinate values for each dimension and a plurality of straight lines which successively connect said computed curve coordinate points.‍

CCOM—an invention for selecting Chinese characters based upon character stroke-types in a word processor

Computer processing apparatus for assembling text in Chinese language characters, said computer processing apparatus including:-

a memory including character stroke data storage means which stores data relevant to Chinese character stroke-type categories, Chinese characters and the order in which character strokes of respective Chinese characters are written and complementary graphic data storage means from which data relevant to the graphic representations of each said Chinese character may be retrieved;

display means for displaying Chinese language characters retrieved from said graphic data storage means;

a keyboard having a plurality of input entry keys including character stroke-type category entry keys designated by indicating means indicative of respective ones of said Chinese character stroke-type categories and selection means for selecting one of a plurality of characters displayed by said display means; and

wherein said character stroke data storage means are searched by entering through said input entry keys search criteria including the entered Chinese character stroke-type categories and the order in which the character stroke-type categories are entered through said input entry keys, whereby upon entry of said search criteria the graphic representation of the or each Chinese character which meet said search criteria are retrieved from the corresponding graphic data storage means and displayed by said display means; and

said selection means being operable to select one of said retrieved graphic representations of Chinese characters whereby text in Chinese language characters may be assembled.‍

Patent claim language examples of patent ineligible cases

Grant—a scheme for protecting assets from unsecured judgment creditors

An asset protection method for protecting an asset owned by an owner, the method comprising the steps of:

(a) establishing a trust having a trustee,

(b) the owner making a gift of a sum of money to the trust,

(c) the trustee making a loan of said sum of money from the trust to the owner, and

(d) the trustee securing the loan by taking a charge for said sum of money over the asset.‍

Research Affiliates—a scheme for constructing data concerning a non‑capitalisation weighted portfolio of assets

A computer-implemented method for generating an index, the method including steps of:

(a) accessing data relating to a plurality of assets;

(b) processing the data thereby to identify a selection of the assets for inclusion in the index based on an objective measure of scale other than share price, market capitalization and any combination thereof;

(c) accessing a weighting function configured to weight the selected assets;

(d) applying the weighting function, thereby to assign to each of the selected assets a respective weighting, wherein the weighting:

(i) is based on an objective measure of scale other than share price, market capitalization and any combination thereof; and

(ii) is not based on market capitalization weighting, equal weighting, share price weighting and any combination thereof;

thereby to generate the index.‍

RPL Central—a scheme for assessing the competency or qualification of people in accordance with recognised standards

‍A method of gathering evidence relevant to an assessment of an individual's competency relative to a recognised qualification standard, including the steps of: ‍

‍a computer retrieving via the Internet from a remotely-located server a plurality of assessable criteria associated with the recognised qualification standard, said criteria including one or more elements of competency, each of which is associated with one or more performance criteria; ‍

‍the computer processing the plurality of assessable criteria to generate automatically a corresponding plurality of questions relating to the competency of an individual to satisfy each of the elements of competency and performance criteria associated with the recognised qualification standard;

‍‍an assessment server presenting the automatically-generated questions via the Internet to a computer of an individual requiring assessment; and

‍‍receiving from the individual via said individual's computer a series of responses to the automatically-generated questions, the responses including evidence of the individual's skills, knowledge and/or experience in relation to each of the elements of competency and performance criteria, ‍wherein at least one said response includes the individual specifying one or more files stored on the individual's computer, which are transferred to the assessment server.‍

Encompass—a method and apparatus for displaying information to provide "business intelligence"

A method of displaying information relating to one or more entities, the method including, in an electronic processing device:

a) generating a network representation by querymg remote data sources, the representation including:

i) a number of nodes, each node being indicative of a corresponding entity; and,

ii) a number of connections between nodes, the connections being indicative of relationships between the entities; and,

b) causing the network representation to be displayed to a user;

c) in response to user input commands, determining at least one user selected node corresponding to a user selected entity;

d) determining at least one search to be performed in respective of the corresponding entity associated with the at least one user selected node by:

i) determining an entity type of the at least one user selected entity;

ii) displaying a list of available searches in accordance with the entity type; and,

iii) determining selection of at least one of the available searches in accordance with user input commands;

e) performing the at least one search to thereby determine additional information regarding the entity from at least one of a number of remote data sources by generating a search query, the search query being applied to one of the number of remote databases to thereby determine additional information regarding the entity;

and,

f) causing any additional information to be presented to the user.‍

Rokt—a marketing scheme

A computer implemented method for linking a computer user to an advertising message by way of an intermediate engagement offer which is operable to drive a higher level of engagement with the advertising message than if the advertising message was presented without the offer, the method comprising:

providing computer program code to be delivered with publisher content to a computing device operated by the computer user and which computing device comprises an interface arranged to display the publisher content, the computer program code operable to be implemented by a processor of the computing device to perform the additional steps of:

gathering engagement data associated with the user, the engagement data derived from interactions made by the user with the interface and related to at least one of the following:

an attribute of the publisher content;

an interaction with the publisher content by the computer user; and

an attribute of the user;

communicating the engagement data as it is gathered to a remote advertising system implementing an engagement engine, the engagement engine operable to:

continuously evaluate the engagement data to determine whether a predefined engagement trigger has occurred, the predefined engagement trigger being representative of a user response or action that is contextually relevant for presentation of the engagement offer;

responsive to determining that the predefined engagement trigger has occurred, selecting an engagement offer from a pool of different engagement offers stored by the remote advertising system that is relevant to the evaluated engagement data and wherein,

where multiple engagement offers are deemed to be relevant, the engagement engine implements a ranking algorithm operable to dynamically rank the relevant engagement offers based on at least one of:

(a) an engagement score determined from one or [more] performance metrics recorded from past user interactions with the corresponding engagement offers;

(b) a revenue score determined from one or more revenue metrics recorded from past user interactions with the corresponding engagement offers, and

wherein the engagement engine selects which engagement offer to present based [on] the rankings;

causing the interface to insert the selected engagement offer into the publisher content for displaying to the computer user;

implementing the computer program code to determine an acceptance of the engagement offer by the computer user based on a user interaction with the engagement offer; and

following the determined acceptance, presenting an advertising message comprising one or more advertisements selected from a pool of different advertisements on the interface and

wherein user interactions with each of the presented advertisements are gathered by the widget script and communicated to the remote advertising system for use in selecting subsequent advertisements, and

whereby the selection of [sic] engagement offer is additionally made such that there is no direct advertising benefit to the subsequent advertisers of the selected advertisements through presentation of the selected engagement offer to the computer user other than encouraging positive engagement by the user with the advertising system prior to presentation of the advertising message.‍