Gaming software patentable in Australia, says Federal Court

Australian is the land of gaming machines, which are also known as “gaming consoles”, “gaming machines”, “pocker machines” and “slot machines”. Australia had roughly five times as many gaming machines as the United States in 1999, and as of 2011 there were over 200,000 of these machines in Australian pubs and clubs, with only 6 other countries having more.

Gaming machines are essentially a computer running gaming software, the computer being connected to peripherals including a display, and user controls in the form of buttons, for example.

The patentability of gaming machines in Australia was tested in a recent legal dispute between two gaming companies, with the Federal Court of Australia handing down this judgement, Aristocrat Technologies Australia Pty Limited v Komani Australia Pty Limited [2015] FCA 735 on 22 July 2015.

Aristocrat argued that Komani infringed two of its patents.  Komani counterclaimed that one of the patents was not for “a manner of manufacture” (i.e. non patentable subject matter under Australian law), curiously citing a relatively out of date decision Dynamite Games Pty Ltd v Aruze Gaming Australia. In Dynamite Games, it was proposed that gaming machines were “.. no more than a mere idea as to the rules of a game”, however the judge for Dynamite found it unnecessary to decide.

The Judge, Nicolas J, found that the invention was a manner of manufacture, declining to accept Komani’s argument.

This strongly suggests acceptance of gaming software patents by the Federal Court.

Strangely, the present case makes no mention of the recent high profile decision Research Affiliates  LLC v Commissioner of Patents [2014] FCAFC 150 (10 November 2014).  Research Affiliates was scathing of a patent for a particular computer implemented invention, and found the computer implemented invention to not be patentable subject matter. Curiously, Nicholas J. was one of the judges for Research Affiliates.

Perhaps the Aristocrat patent that threatened Komani would of been revoked if Research Affiliates was considered.  So why was Research Affiliates not cited?

While I don’t have an answer, I suspect that Komani did not want to cite Research Affiliates in it’s counterclaim, in fear of setting a precedent against gaming software patents.   Komani has many software patents of their own.

In my opinion, this is a perplexing judgment that demonstrates the Federal Court’s flexible approach to software patents.

If you found this interesting, consider reading Mark Summerfield’s post on patentology, here.

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