Can Your Software Be Patented? The Aristocrat Decision That Changed Everything

If you've built software or a tech product in Australia and wondered whether you can protect it with a patent, you're not alone. For years, the answer was often "probably not" — and that frustrated a lot of innovators.

But in 2025, the Full Federal Court delivered a decision in Aristocrat Technologies Australia Pty Ltd v Commissioner of Patents [2025] FCAFC 131 that many in the tech industry are calling a game-changer.

Let's break down what happened, what it means for your business, and what you should do next.

The Problem: Australia Was Hard on Software Patents

Here's the situation Australian tech companies faced:

To get a patent in Australia, your invention has to be a "manner of manufacture." It's an old legal phrase that essentially means: "Is this the kind of thing that can be patented?"

For software and computer-implemented inventions, Australian patent examiners had been applying a strict rule: your software had to improve the computer itself.

This created a huge problem. Imagine you've built software that:

Helps farmers predict crop yields using weather data
Optimises delivery routes for a logistics company
Manages inventory for a retail chain

None of these improve the computer. They use computers to solve business problems. Under the old approach, none of them could be patented in Australia.

Compare that to the United States, where similar software can often be patented. Australian innovators were at a significant disadvantage.

The Aristocrat Case: A Long Road to This Moment

Aristocrat Technologies Australia Pty Ltd v Commissioner of Patents [2025] FCAFC 131 involved Aristocrat Technologies, an Australian company that makes gaming machines — the kind you see in casinos and pubs. They hold patents for gaming machines that use computers to run games.

The Commissioner of Patents (the government official who decides whether patents are granted) refused Aristocrat's patents. The argument was simple: "You're just running a game on a computer. That's an abstract idea. Not patentable."

Aristocrat fought back. And after what the court described as a "torturous procedural history" — meaning it went back and forth between courts for years — the Full Federal Court finally delivered a clear test in 2025.

The New Test: What Can and Can't Be Patented

The Full Federal Court laid out a simple two-part test:

❌ NOT Patentable

An abstract idea that is merely manipulated on a computer.

Example: A business process for managing staff rosters, implemented on a computer, with no technical effect beyond what any computer can do.

✅ Patentable

An abstract idea implemented on a computer to produce an artificial state of affairs and a useful result.

Example: A system that uses specific algorithms to improve the scanning speed of a wireless device, producing a tangible technical benefit.

The Big Change: "Advance in Computer Technology" Is Dead

The Court expressly stated that your invention does NOT need to be an advance in computer technology.

This is huge. It means your software doesn't need to make computers faster, more efficient, or more capable. It just needs to use a computer to produce a practical, useful result in the real world.

What This Means for Different Types of Businesses

Gaming and Entertainment

If you develop gaming software, virtual experiences, or interactive entertainment, this is directly relevant to you. Game mechanics implemented on computers are now much clearer candidates for patent protection.

FinTech and Business Software

Software that solves business problems — loan approval systems, payment processing, financial modelling — has a better chance now. But you still need to show a technical implementation, not just a business idea.

AI and Machine Learning

This is where it gets interesting. AI models and algorithms sit in a grey area. If your AI produces a useful result in a specific application (like detecting fraud, diagnosing diseases, or optimising energy use), it may be patentable. But a pure algorithm sitting in a lab? Probably not.

Healthcare and Medical Software

Software for medical diagnosis, treatment planning, or patient monitoring has a strong case. The "artificial state of affairs" test is easier to satisfy when you're dealing with health outcomes.

Agriculture and AgriTech

Farm management software, precision agriculture tools, and food supply chain optimisation all have potential. The key is showing how your software produces a practical, useful result.

How to Write a Patent Application That Gets Approved

The Aristocrat decision gives you more opportunity, but you still need to get the patent application right. Here's how:

1. Focus on Technical Features

Don't just describe what your software does. Describe how it does it. Highlight the interaction between your software and hardware. Show the technical problem you're solving.

2. Frame It as a Technical Solution

Instead of "our software helps managers track employee attendance," try "our system processes biometric data through a distributed network to generate real-time attendance records with cryptographic verification."

See the difference? One sounds like a business process. The other sounds like a technical invention.

3. Describe the Whole Invention

When explaining your invention, include both the novel parts and the conventional parts. Don't let the patent examiner isolate your "inventive" elements and characterise them as abstract.

4. Show the Practical Result

Make it clear what useful result your invention produces. Is it faster? More accurate? More secure? More efficient? Quantify it if you can.

5. Think About International Strategy

Australia's test is still different from the US, UK, and Europe. If you're filing patents internationally, you'll need different strategies for different jurisdictions. What's patentable in Australia might not be patentable in the US, and vice versa.

What About the Old Cases?

You might be wondering: "Does this mean all previously rejected software patents can now be filed?"

Not quite. Each application is assessed on its own merits. The Aristocrat test is now the law, but patent examiners will need time to adjust their approach. The first few years after this decision will be important in establishing how the test is applied in practice.

Also, the wording of the test may require further interpretation by the courts. Watch for early cases that test the boundaries — especially around AI, blockchain, and other emerging technologies.

Practical Steps for Your Business

If You Haven't Filed Yet

Don't wait. The more time you spend developing your product without protection, the more risk you're taking.
Talk to a patent attorney. Not all patent attorneys specialise in software. Find someone with experience in your industry.
Document everything. Keep records of your development process, technical decisions, and the problems you solved.

If You've Been Rejected Before

Review your rejection. Was it based on the old "advance in computer technology" approach? If so, you may have a stronger case now.
Consider appealing or re-filing. The Aristocrat decision may give you a fresh argument.
Don't give up. Software patents are still difficult in Australia, but the landscape has improved.

If You Already Have Patents

Review your portfolio. Do you have any software-related patents that could be strengthened or expanded?
Consider new filings. The improved landscape may mean innovations you previously thought were unpatentable now qualify.

The Bottom Line

The Aristocrat decision is a win for Australian tech innovators. It removes one of the biggest barriers to software patent protection and brings Australia closer to international practice.

But opportunity only benefits those who act on it. If you've built something innovative, don't assume it can't be protected. Get professional advice, draft your application carefully, and take advantage of the improved landscape.

Your software might be more patentable than you think.

This article is for general information only and does not constitute legal advice. If you have questions about patenting your software or technology, consult a qualified patent attorney.