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Patents

Software Patents

Statutes

The Australian Patents Act (1990), which came into effect on the April 30, 1991, contains no specific exclusion of patentability of computer program related inventions.

In April 1986, the Australian Patent Office issued its Guidelines for Considering the Patentability of Computer Program Related Inventions. Prior to the IBM decision, the Australian Patent Office applied a test similar to that of the Freeman-Walter-Abele test. Following the IBM decision, the Patent Office proposed a new test: "Does the invention claimed involve the production of some commercially useful effect?" [emphasis added]

The Australian Patent Office uses the following illustrations of its test:

1) a method-type claim must define a method which, either directly or by clear implication, embodies the commercially useful effect.

2) a claim to a mathematical algorithm per se is not patentable, because it does not produce a commercially useful effect. A commercially useful effect can only arise when the mathematical algorithm is implemented in some manner to produce a result.

3) a claim to a mathematical algorithm when used in a computer is patentable so long as a commercially useful effect is produced.

Case Law

The decision in National Research Development Corporation v. Commissioner of Patents ("the NRDC decision") ⁽¹⁾held that constraints on what constitutes patentable subject matter should not be imposed and the Court should simply consider basic principles when determining whether an invention constitutes patentable subject matter.

In the first case to consider the patentability of computer software, International Business Machines v. Commissioner of Patents (1992) AIPC 90-853, the Australian Federal Court took a liberal approach for the patentability of computer software per se. ⁽²⁾

In CCOM PTY, Ltd. and Another v. Jiejing Pty. Ltd. and Others the full Federal Court confirmed the liberal approach taken in the IBM case in dealing with the patentability of an invention relating to a word processing system for Chinese characters in which stroke categories for characters were entered using a dedicated keyboard.