High Court Backs Aristocrat on Software Patentability – It’s Time for IP Australia to Follow Suit

The High Court of Australia has denied an application by the Commissioner of Patents for special leave to appeal a decision of the Full Federal Court in which claims to a computer-implemented invention (CII), in the form of an electronic gaming machine (EGM), were found to be patent-eligible in Australia.  This brings to an end the long-running dispute over patentability of Aristocrat’s claims, and marks the first time since 1991 (IBM v Commissioner of Patents [1991] FCA 625) that any such dispute with the Commissioner over claims to a CII has concluded with a victory to the applicant/patentee. 

The significance of this outcome cannot be overstated.  In recent years we have seen many cases conclude with claims being found ineligible – i.e. not for a ‘manner of manufacture’ under Australian law – namely Grant v Commissioner of Patents [2006] FCAFC 120, Research Affiliates LLC v Commissioner of Patents [2014] FCAFC 150, Commissioner of Patents v RPL Central Pty Ltd [2015] FCAFC 177, Watson v Commissioner of Patents [2019] FCA 1015 (leave to appeal refused in Watson v Commissioner of Patents [2020] FCAFC 86), Repipe v Commissioner of Patents [2019] FCA 1956, and Commissioner of Patents v Rokt Pte Ltd [2020] FCAFC 86.  That is a lot of cases telling us what is not patent-eligible, with absolutely no guidance from the courts on where the boundary might lie on the positive side of patent-eligibility.  Finally, we have a decision of the Full Federal Court that sets out a reasonably clear and concise test which is then applied to eligible claims.  The High Court, in denying the Commissioner’s application for special leave to appeal, stated that the ‘Full Court applied established principles concerning the assessment of manner of manufacture and reached a unanimous and clear conclusion as to characterisation’: Commissioner of Patents v Aristocrat Technologies Australia Pty Ltd [2026] HCADisp 15, at [2].

Following a rather convoluted passage through the Federal Court, the Full Federal Court and the High Court, back to the primary judge and then to the (differently constituted) Full Court, the final word on patent-eligibility of Aristocrat’s claims is Aristocrat Technologies Australia Pty Ltd v Commissioner of Patents [2025] FCAFC 131.  In this decision, the Full Court effectively overruled the reasons (though not the orders) of the earlier Full Court, and adopted the affirmative reasons of three High Court judges in the split decision Aristocrat Technologies Australia Pty Ltd v Commissioner of Patents [2022] HCA 29 (see High Court’s Failure Exposes the Festering Eligibility Sore in Australia’s Patent Laws for more).  Somewhat unusually, this also involved, in a sense, ‘overruling’ the negative reasons of the other High Court judges, in a rare instance of three judges of an inferior court asserting precedence over three judges of a superior court (albeit with the support of three further judges of that superior court).  But that’s just a function of how weird this case became!

In what follows, I will briefly summarise how we got here, where the law stands in view of the Full Court’s 2025 decision, and the High Court’s reasons for refusing special leave to appeal.  Finally, I will review the current examination practice of the Australian Patent Office, and the prospects of change in the wake of the High Court’s decision.

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Tags: Appeal, Australia, Computer programs, Examination, High Court, Patent Office, Patentable subject matter

Are Patent Offices Being Inundated with Low-Quality AI-Generated ‘Slopplications’?

‘AI slop’, defined as ‘low-quality content created by generative AI, often containing errors, and not requested by the user’, was named Word of the Year for 2025 by the Macquarie Dictionary.  Replace ‘content’ with ‘applications’, and ‘user’ with ‘patent office’ – let’s call them ‘AI slopplications’ – and we would have a good definition of a phenomenon that I suspect is occurring at offices around the world.  In the first 10 months of 2025 (i.e. up until the end of October) the number of provisional applications filed at IP Australia by self-represented applicants was up by a whopping 174% over the previous five years’ average! The overwhelming majority of self-filed applications (98.6%) originate in Australia (i.e. have at least one Australian-resident applicant).

The number of self-filed standard patent applications has also increased, being 82% higher in the first 10 months of 2025 compared with the previous five years’ average.  However, the number of standard patent filings by self-represented applicants remains a small proportion of the total – just 2.6% of all applications filed up until the end of October – and so the significance and impact of this increase remains to be seen.

The only plausible explanation I can think of for this sudden jump in filings by self-represented applicants after years of relative stability in numbers is the increasingly widespread and affordable availability of generative AI.  What is not yet apparent is how applicants are using AI.  Are they using ChatGPT and similar tools to assist in drafting patent specifications describing inventions made wholly by human inventors?  Or are they also using AI to facilitate invention itself?

Either way, I fear that this will not end well for many of these self-filers.  To be clear, there is absolutely no question that AI tools based on large language models (LLMs) can be used to assist in drafting patent specifications.  In the hands of an experienced patent professional who understands the invention to be protected, the full legal requirements for protection, and the various national and international drafting principles, even a general-purpose tool such as OpenAI’s ChatGPT, Anthropic’s Claude, or Google’s Gemini can accelerate the process of preparing a quality patent specification.  But there are also many potential pitfalls to using these tools, and they do not embody the significant expertise, skill and experience of a competent patent professional.  And if the AI is also contributing to the invention, then there may be nothing that is legally protectable at all!

The good news for Australian patent attorneys is that the increase in DIY (with AI) provisional applications has not been accompanied by a corresponding decrease in applicants engaging professional assistance.  The number of provisional applications filed via registered attorneys and firms for the first 10 months of 2025 is down by just 3.2% on the past five years’ average.  And while this does reflect an ongoing decline over recent years, it indicates that the use of AI may be bringing new users to the patent system, rather than taking work from professional advisors.

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Tags: Artificial intelligence, Australia, Large Language Models, Patent analytics, Patent drafting, Patent Office, Patents and society, Provisional applications

How Attorney Firms are Benefiting from an Australian Patent Examination Backlog

The Australian patent attorney profession has been undergoing a significant structural shift over the past decade.  The listing of IPH Ltd in November 2014, and its subsequent series of acquisitions and mergers has created a dominant force controlling multiple major firms, while QANTM IP (QIP)  -- which was originally publicly listed , but now owned by private equity – has become established as a second consolidated group.  These ownership changes were expected to generate economies of scale and competitive advantages, yet the data tells a more complex story.  Independent firms – those remaining outside the IPH and QIP consolidated groups – have been steadily gaining share.  The latest data, presented here, indicates that independent firms have collectively lifted their new application filings from under 9,500 in FY2016 to nearly 15,000 in FY2025, while IPH's filings declined from over 14,000 to under 10,000 over the same period.

Conventional wisdom would suggest that such a dramatic shift in filing volumes should translate into corresponding changes in prosecution revenues within a few years, given the typical 3-5 year lifecycle from filing through examination to acceptance.  However, publicly available financial information, particularly for the listed IPH group, has not shown the revenue declines one might expect from a 30% reduction in new filings.  This apparent paradox raises questions about what is actually happening within the Australian patent prosecution system, and whether current revenue patterns are sustainable or merely a temporary phenomenon masking an inevitable adjustment.

By analysing detailed prosecution event data from IP Australia covering FY2013-25, including filing volumes, examination requests, examination reports, and acceptances across different firm groups, this article reveals a remarkable story. The data shows how factors largely outside the control of attorney firms – particularly IP Australia's examination capacity, backlog management, and recent productivity changes – have temporarily insulated the consolidated groups from the full commercial impact of their declining market share. The findings have significant implications for understanding current industry dynamics and, more critically, for assessing the medium-term prospects of different participants in the Australian patent attorney market.

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Tags: Australia, Patent analytics, Patent attorney profession, Patent Office

Can You Turn an AI Chatbot into a Patent Drawing Professional?

Unsurprisingly, many of my conversations with fellow patent attorneys over the past couple of years have centred on AI – my work with it, and what it means for patent practice.  My own experience, and that of people I have spoken to, is that full patent drafting is not (yet) a practical application of AI, so patent attorneys are not yet out of a job!  But I believe that there are, increasingly, parts of this task with which AI can provide effective assistance and productivity enhancements.  And while much discussion around AI and intellectual property is directed to high-level policy questions or speculative future scenarios, I'm also interested in what we can do right now.

This week, I decided to experiment with using AI for a task that regularly eats up my time in patent drafting: creating professional flowcharts for computer-implemented inventions.  There are, of course, commercial tools emerging for the automated generation of patent drawings, mostly as part of more comprehensive AI drafting assistance systems.  My specific goal, however, was to see if I could develop a reliable system, using a general-purpose AI chatbot for which I already have a paid subscription (my chatbot-of-choice is Anthropic’s Claude), to go from a plain English algorithm description to a publication-ready, annotated flowchart suitable for a patent specification.  And it turns out (spoiler alert) that the answer is yes. 

What you will see below is a demonstration of the conversion of an algorithm – Euclid's method for finding the greatest common divisor (GCD) – described in everyday language into a professionally annotated flowchart in under five minutes.

I generally use PowerPoint for this kind of work – it is included with my Office 365 subscription, and thus incurs zero marginal cost.  Some people use professional drawing applications, such as Visio, which provide more tools that can be used to speed up the process.  And there are also specialised flowcharting applications available, although these can still be tedious to use for complex algorithms and – more importantly – they don't address the need for professional annotation with reference numerals and leader lines that patent specifications require.

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Tags: Artificial intelligence, Patent attorney practice, Patent attorney profession, Patent drafting

Former Patent Examiner Takes IP Australia to Federal Court Over Alleged ‘Abusive Management Practices’

A former IP Australia patent examiner who alleges ‘unlawful, unreasonable, unfair, inefficient, and abusive management practices’ at the government agency is seeking Federal Court review of Fair Work Commission (FWC) decisions that rejected his unfair dismissal claim.

Hendrik Johannes Liebenberg, who worked as a Patent Examiner from October 2012 until May 2024, has applied to the Federal Court of Australia for writs of certiorari and mandamus following unsuccessful FWC proceedings.  His case centres on allegations that routine quality assurance procedures at IP Australia constituted improper interference with his decision-making authority.  He has, additionally, escalated these claims into broader accusations about institutional practices.

For readers unfamiliar with the legal terminology, a writ of certiorari commands an inferior court or tribunal to set aside a decision, and is typically used when the decision-maker has exceeded their jurisdiction or made a jurisdictional error.  A writ of mandamus compels a public official or body to perform a duty they are legally required to perform, or to exercise their jurisdiction according to law.  Both are supervisory remedies allowing superior courts to oversee the exercise of power by decision-makers.

While it is more usual for the Federal Court to review administrative decision under the Administrative Decisions (Judicial Review) Act 1977, the difficulty for Mr Liebenberg is this case is that paragraph (a) of Schedule 1 to the ADJR Act excludes decisions made under employment-related legislation – including the Fair Work Act – from review.  This exclusion reflects Parliament's intention that Fair Work matters should be resolved within the specialist tribunal system rather than through general administrative law review.  To succeed, therefore, Mr Liebenberg will need to show that the FWC fundamentally misunderstood its jurisdiction, not just that it made errors within its jurisdiction.

The case provides a window into workplace dynamics at Australia’s primary intellectual property agency, though the FWC found no merit in the constructive dismissal claim after examining the circumstances of Mr Liebenberg's resignation.

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Tags: Examination, IP Australia, News, Patent Office