Use of Generic Software and Hardware Does Not Make Schemes/Ideas Patentable Says Australian Federal Court

On December 11, 2015, the Full Court of the Federal Court of Australia in Commissioner of Patents v RPL Central Pty Ltd, [2015] FCAFC 177, confirmed that a “scheme”, “idea”, “abstract idea” or “business method” implemented on a generic computer, using standard software and hardware, is unpatentable.  As one might expect, the court did not attempt to define any of these terms or to distinguish them, for example, from patentable methods. The court stated that where the claimed invention is to a computerized business method, the invention must lie in the computerization and not in the business method.  A computer acting merely as an “intermediary”,  configured to carry out the method but adding nothing to the substance of the “idea” is not a patentable invention.

RPL Central Pty Ltd’s patent application No. AU2009100601 claimed a method of gathering evidence for the purpose of assessing an individual’s competency relative to a recognized qualification standard.  The claims extensively defined the use of a computer, the internet and a remote server in the performance of the method steps.

In considering whether RPL Central Pty Ltd’s invention made a “technical contribution”, the Court held that a method that cannot be carried out without the use of a computer does not make the claimed invention patentable if it involves simply the speed of processing and the creation of information for which computers are routinely used. The court did not attempt to define what a “technical contribution” is. In those circumstances, the claimed invention is still to the business method itself.   However, a computer-implemented business method can be patentable where the invention lies in the way in which the method is carried out in the computer.  For example, the court left the door open to patenting machine learning and other artificial intelligence software provided there is some ingenuity in the operation of that software.

Additional Commentary is available here.

Summary By: Robert Dewald