Following the High Court’s refusal of special leave to the Commissioner of Patents on 5 February 2026, Australia now has a clear position on computer-implemented inventions (CIIs): the Full Federal Court’s September 2025 articulation of the test in Aristocrat Technologies Australia Pty Ltd v Commissioner of Patents[1] remains the settled law. This update builds on our last insight on the Aristocrat litigation and explains what the High Court’s refusal means in practice for CII patent eligibility.
What the High Court decided
In its application for special leave, the Commissioner of Patents argued that the Full Court erred in its August 2025 decision by departing from a 2021 Full Court decision and the established approach to CIIs in Research Affiliates,[2] RPL,[3] Encompass,[4] and Rokt.[5] It also argued that by operation of the Judiciary Act 1903 (Cth), which provides for the affirmation of the Federal Court’s decision where the High Court is evenly split on an appeal, the 2021 Full Court decision was binding.
However, on 5 February 2026, the High Court refused the Commissioner’s application for special leave to appeal with costs, stating there was ‘insufficient reason to doubt the correctness of the decision of the Full Court’.[6] In particular, it found that:
- special leave to appeal was 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’ [7] and
- ‘therefore there is no utility in a grant of special leave’ to consider s 23(2)(a) of the Judiciary Act.[8]
The consequence of this refusal is that the Full Federal Court’s September 2025 decision now stands as the prevailing authoritative approach for assessing patent eligibility of CIIs under s 18(1A)(a) of the Patents Act 1990 (Cth).
Quick recap of the Federal Court’s decision
As set out in our insight from September last year, the Full Federal Court rejected the 2021 Federal Court’s ‘two-step’ approach that determined patent eligibility by asking whether a CII constituted an ‘advance in computer technology’, holding that the correct inquiry is anchored in first principles drawn from National Research Development Corporation v Commissioner of Patents (NRDC).[9] In particular, an invention is a patent-eligible ‘manner of manufacture’ where, properly characterised as a whole, it is an abstract idea implemented on a computer to produce an artificial state of affairs and a useful result.[10] In contrast, merely using a computer to manipulate an abstract idea is not patentable.[11]
Importantly, the Full Court expressly disapproved the rigid proposition that implementing an idea on a conventional computer using well-known functions cannot be a manner of manufacture. It stated:
‘It is too rigid and narrow an approach to say that the implementation of an idea in a computer, using conventional computer technology for its well-known and well-understood functions, cannot constitute a “manner of manufacture”.’[12]
In short, it is no longer relevant to the test whether the invention advances computer technology. The question is rather whether the implementation yields the requisite artificial state of affairs and useful result.
| Unpatentable | Patentable |
| Use of a computer to manipulate an abstract idea | An abstract idea which is implemented on a computer to produce an artificial state of affairs and a useful result |
In our earlier insight, we summarised what an ‘artificial state of affairs’, as first described in NRDC over 60 years ago, actually is:
‘… applying this test … in practice has never been straight-forward. In the context of software, a business method or abstract concept merely implemented on a computer will not be sufficient. There will be better prospects of establishing the existence of patentable subject matter where the invention comprises a technical advance or contribution — for example, an improvement in computer functionality, data processing, or system architecture.’
Additionally, we also looked at what a ‘useful result’ might look like:
‘… a “useful result” will not be satisfied by the (mere) manipulation of information or implementation of a scheme, unless that manipulation leads to a tangible or technical effect.
‘… for software-implemented inventions, the prospects of demonstrating patentable subject matter will be higher where the program delivers more than a mathematical calculation or organisation of information — for example, where it generates a result that has real-world application or enhances the operation of technology.’
The procedural history
For an extraordinarily concise summary of the complex procedural history of this litigation, we could not improve on the Hight Court’s first paragraph of its special leave refusal:
‘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] HCA 29; (2022) 274 CLR 115.’
For a more detail background on the procedural context of how we got to this final decision, please see our previous insights on many of the key decisions:
- Back to the future? Full Court (again) Reverses Test for Software Patents, 24 September 2025
- The High Court has decided the patentability of computer implemented inventions – Aristocrat v Commissioner of Patents, 18 August 2022
- The High Court to decide – are computer implemented inventions patentable? Aristocrat v Commissioner of Patents, 9 June 2022
- Game On for Aristocrat, 9 June 2020
What’s next?
For computer and software innovators and investors, the High Court’s refusal of the application for special leave provides much welcomed certainty to the status of CIIs as patentable subject matter under Australian law. It marks the conclusion of the Aristocrat litigation and removes any residual uncertainty surrounding the authority of the Full Federal Court’s September 2025 decision, confirming the Court’s simpler and lower threshold approach to patent eligibility for CIIs as settled under Australian patent law. Going forward, applicants seeking patent protection of their CIIs should:
- draft claims to emphasise the CII’s technical operation and how it produces an artificial state of affairs and useful result
- frame the invention’s characterisation early and consistently as a technical implementation that produces an artificial state of affairs and a useful result
- avoid any drafting which frames the invention as merely a business rule or abstract idea manipulated on a generic computer
- where possible, demonstrate the useful result by providing quantitative or qualitative indicators and tie these to the claimed mechanisms, not merely to a business outcome and
- characterise the invention by reference to the claim as a whole.
Featured image by Tony Melony from Pixabay.
[1] (2025) 311 FCR 493.
[2] Research Affiliates LLC v Commissioner of Patents [2014] 227 FCR 378.
[3] RPL Central Pty Ltd v Commissioner of Patents [2015] 238 FCR 27.
[4] Encompass Corporation Pty Ltd v InfoTrack Pty Ltd [2019] 372 ALR 646.
[5] Rokt Pte Ltd v Commissioner of Patents [2020] 277 FCR 267.
[6] Commissioner of Patents (Cth) v Aristocrat Technologies Australia Pty Ltd [2026] HCADisp 15 at [2].
[7] Ibid.
[8] Ibid.
[9] (1959) 102 CLR 252.
[10] Aristocrat Technologies Australia Pty Ltd v Commissioner of Patents (2025) 311 FCR 493 at [131].
[11] Ibid.
[12] Ibid.
