A big tick for tech: High Court declines to reopen patentability battle

No special leave to appeal Aristocrat II 2 min read

On 5 February 2026, the High Court of Australia¹ (Australia's ultimate appellate court) refused the Commissioner of Patent's application for special leave to appeal from the decision of the Full Court of the Federal Court Australia in Aristocrat Technologies Australia Pty Ltd v Commissioner of Patents.²

As discussed in our earlier Insight, the Full Court's decision had formulated a test for the patentability for computer-implemented inventions which is simpler, consistent with earlier High Court authorities regarding patentable subject matter and ultimately more friendly towards innovators of computer technology.

In dismissing the application for special leave, the High Court said there was insufficient reason to doubt the correctness of the Full Court’s decision. In particular, it stated that:

• special leave to appeal was not in the interests of the administration of justice in circumstances in which the Full Court applied established principles concerning the assessment of manner of manufacture and had reached a unanimous and clear conclusion as to the question of characterisation; and
• there was also no need for special leave to consider the operation of rules of precedent concerning s23(2)(a) of the Judiciary Act (which provides for the decision below to stand if the High Court bench is deadlocked on appeal).

What comes next?

For software and computer technology innovators, this decision offers greater assurance that computer‑implemented inventions, when properly characterised and possessing the requisite technical features, can be patentable subject matter under Australian patent law.

We will continue to monitor how Australian courts adopt the Full Court's decision in this technology area and, importantly, how the Australian Patent Office approaches examination of computer-implemented inventions going forward. We will share further practical insights as they emerge.

As indicated in our earlier Insight, you can also take the following actions now:

• Reassess your IP protection strategies in Australia: in light of the favourable outcome, applicants can be more optimistic about the likelihood of obtaining patent protection for their computer-implemented inventions in Australia.
• Capitalise on the momentum this decision has created: innovators may wish to file applications for their computer-implemented inventions now in order to secure favourable outcomes for their IP portfolio, assisted by the Full Court's decision and High Court's refusal to grant special leave.
• Consider further advocacy: discuss with us the possibility of advocating with IP Australia to ensure its examination practice aligns with the Full Court decision—whether directly; via a sector-based effort; or indirectly, through interested professional organisations.
• Emphasise technical aspects in patent specifications: drafting patent specifications focusing on its technical implementation solving a technical problem, rather than on its business application, can help increase the likelihood the patent claims, when properly characterised, are construed as a 'manner of manufacture'.