To many, including patent attorneys, the patentability of software in Australia can be confusing. The law and its application is still developing.
I’d like to inform you of my views of the situation, as an Australian patent attorney who does his best to protect his client’s “software” inventions on a daily basis.
Like many jurisdictions, the patentability of software in Australia has been vigorously contested in the last five years or so. I think it is fair to say that IP Australia, the body that administers Australian patents, has played a big role in restricting the patentability of some types of “software patents”.
In my experience, IP Australia has a mixed view on the patentability of software. While it will aggressively attack some software patents, it will let others float through examination.
Before we become two focused on the law and official practice, let’s step back to observe IP Australia’s conundrum. Some types of software are, in their opinion, bad. In particular, they do not like software patents that, I think, are implementations of ideas that do not advance technology. An example would be software generating an investment strategy.
I believe that IP Australia thinks that the balance is wrong, that protection should not be given to ideas without any real “technical” advancement.
At the same time, the reality is that software is more important than ever, and is an increasing part of all sorts of technologies that traditionally have nothing to do with software, like medicine and mining. The economies that do not nurture technologies that use software are going to economically flounder. That much is clear. Just look at Apple, it’s now the biggest company … ever!
The technologies that use software must receive patent protection. I think that, generally, IP Australia wants to accept patents for these inventions (which is great).
But nevertheless, IP Australia is compelled to ask a thorny question of every patent application, be it for an programmed embedded controller or a programmed general purpose computer: “is the invention software and so not patentable”.
It can be very difficult to answer. The line between hardware and software is becoming increasingly hard to discern. It’s easy to throw out the baby out with the bath water, as they say. It’s no surprise that it’s sometimes hard to predict how a patent application will be officially received.
So is an invention that uses software patentable? We can apply IP Australia examination guidelines and case law to answer the question. You can read my posts that discuss these in detail.
But perhaps the easiest way to answer is to apply a “sniff test”: Does the invention smell like a real advance in technology, or does it just use technology to make a process faster or easier to implement?
While the situation is more nuanced, in the end, the sniff test maybe at the heart of IP Australia’s “software” patent policy.