In a highly awaited decision, the High Court of Australia has refused the Commissioner of Patents’ application for special leave to appeal the decision of the Full Court of the Federal Court of Australia in Aristocrat Technologies Australia Pty Ltd v Commissioner of Patents [2025] FCAFC 131. The High Court’s disposition of the Commissioner’s special leave application is reported at Commissioner of Patents v Aristocrat Technologies Australia Pty Ltd [2026] HCADisp 15.
The High Court’s Decision
The Commissioner of Patents applied for special leave to appeal the 2025 decision of the Full Court of the Federal Court of Australia (Beach, Rofe and Jackman JJ), which had unanimously allowed Aristocrat’s appeal from a decision of the Federal Court of Australia (Aristocrat Technologies Australia Pty Ltd v Commissioner of Patents (No 3) [2024] FCA 212) on the issue of whether the claims of the Aristocrat patents in suit constituted patentable subject matter (or a “manner of manufacture”) under s 18(1A)(a) of the Patents Act 1990 (Cth). [1] The Federal Court decision resulted from a remittal from an earlier decision of the Full Federal Court (Commissioner of Patents v Aristocrat Technologies Australia Pty Ltd [2021] FCAFC 202) that was affirmed after a decision of the High Court of Australia (Aristocrat Technologies Australia Pty Ltd v Commissioner of Patents [2022] HCA 29) was evenly divided.
We explored the implications of the 2025 Full Court decision in our earlier article in which we predicted that if special leave was not granted, the decision of the Full Federal Court would become the binding authority on the issue of patent-eligibility of computer-implemented inventions.
The High Court’s reasons for refusal were brief but pointed. In view of the case’s unusual history, including the earlier evenly divided High Court decision, the High Court held that there was “insufficient reason to doubt the correctness” of the 2025 Full Federal Court’s decision. The High Court emphasised that the Full Federal Court had applied “established principles concerning the assessment of manner of manufacture and reached a unanimous and clear conclusion as to characterisation”.
As such, the High Court held that a grant of special leave was not in the interests of the administration of justice.
Implications for Examination practice
The refusal of special leave has practical consequences. It confirms that the approach of the Full Federal Court to assessing patentable-subject-matter eligibility of computer-related inventions by applying principles established in National Research Development Corporation v Commissioner of Patents [1959] HCA 67 is the correct one.
Attention now shifts to the implications of the decision to the Australian Patent Office’s examination practices for assessing whether computer-related inventions constitute patentable subject matter. The Australian Patent Office had somewhat amended its guidance in the Examination Manual on manner of manufacture for computer-related inventions in light of the 2025 Full Federal Court’s decision. Following the High Court’s refusal of special leave, we are hoping for a change in examination practice away from requiring an advance in “computer technology” and towards an assessment using established principles such as the approach taken in the Full Federal Court decision.
In view of the affirming of the Full Federal Court decision, our view is that examination should occur through the lens of whether a claimed invention, properly characterised, produces an artificial state of affairs and a useful result.
At this stage, it is too early to predict whether the Full Federal Court decision will have a concrete effect on the examination of inventions that do not involve what can be considered as abstract ideas (such as games) implemented in computers. However in any event, the Full Federal Court’s emphasis on the interaction of physical and functional features when characterising the substance of an invention, and on whether the claimed features interact to produce an artificial state of affairs and a useful result, if taken up by the Australian Patent Office should improve the patentability landscape for inventions beyond the gaming context. An improved patentability landscape is particularly important for incentivising innovation in emerging technologies such as artificial intelligence.
For context on our earlier analysis of the Full Federal Court decision and its alignment with NRDC principles, see our October 2025 Insight.
If you have any further questions about patents or any other aspect of IP in Australia, please contact us.
[1] Aristocrat Technologies Australia Pty Ltd v Commissioner of Patents [2025] FCAFC 131
