Aristocrat (2025) and the software patent debate
The Aristocrat litigation has been one of the most significant Australian patent cases in recent years for those working with computer-implemented inventions (CIIs). In Aristocrat Technologies Australia Pty Ltd v Commissioner of Patents [2025] FCAFC 131 (Aristocrat (2025)), the Full Federal Court revisited the application of Australia’s long-standing exclusion of “mere schemes” to modern software-based inventions, particularly those implemented in gaming systems.
As discussed in our earlier article, Hitting the Jackpot: Aristocrat Wins on Software Patentability, the Full Court’s decision was widely seen as clarifying, and in some respects re-balancing, the approach to patentable subject matter for CIIs. While the Court did not dismantle the existing framework, it emphasised that eligibility must be assessed by reference to the claimed invention as a whole and whether it delivers a technical contribution, rather than by reducing claims to abstract ideas at an early stage of the analysis.
The High Court’s refusal of special leave
In February 2026, the High Court of Australia refused special leave to appeal the Full Federal Court’s decision. While a refusal was accompanied by brief reasons noting that the Full Court had applied established principles and reached a clear conclusion, it does not constitute an explicit endorsement of any particular formulation of the test for patentability. Its practical effect, however, is clear. The Full Federal Court’s decision in Aristocrat (2025) stands as the final word on the case.
Following the Full Court’s decision, IP Australia updated its Manual of Practice and Procedure on 14 October 2025 to incorporate revised guidance on the examination of computer-implemented inventions. This update was widely expected to translate the Aristocrat (2025) reasoning into corresponding examination practice. However, some commentators have remained sceptical as to whether the Manual accurately reflects the Full Court’s reasoning or whether it would lead to any real change in examination practice.
Has examination practice really shifted?
To explore this question empirically, we analysed acceptance outcomes for Australian patent applications classified under IPC G06*, a broad proxy for software and computer-implemented inventions. Rather than focusing on raw acceptance volumes, which are heavily influenced by timing and procedural factors, we examined relative acceptance proportions across the four examining units that primarily handle software-related applications: ELEC 1, ELEC 2, ELEC 3 and ELEC 4.
ELEC 4 is of particular interest. It is commonly understood within IP Australia to deal with the most eligibility-sensitive and abstract software subject matter. If Aristocrat (2025) and the subsequent Manual update had materially changed examination practice, this is where one would expect to see it first, in the form of a relative increase in ELEC 4 acceptances compared with the other ELEC units.
We therefore compared acceptance proportions across two periods: a pre-Aristocrat period, covering acceptances prior to the clarification of the law by the Full Federal Court, and a post-guidance period, covering acceptances following IP Australia’s update to the Patent Manual. A short transition period between these phases was excluded from the analysis. Focusing on relative proportions, rather than absolute counts, allows us to control for applicant-side behaviour and timing-related effects in prosecution and to isolate whether acceptance outcomes have been meaningfully re-weighted toward ELEC 4.
What the data shows
The results are striking in their consistency. Across both timeframes, the relative acceptance shares of ELEC 1 to ELEC 4 remain broadly stable.
Of particular note, ELEC 4’s proportion of acceptances increased by only around one percentage point in the post-guidance period. This change is well below a level that would indicate a substantive shift in examination practice in response to a significant change in case law. This stability persists whether the analysis is segmented by the date of the Full Federal Court decision or by the date of the Patent Manual update. In neither case is there evidence of a step change or structural reallocation of acceptance outcomes in favour of the most eligibility-sensitive software applications.
Where this leaves software patentability in Australia
The High Court’s refusal of special leave brings welcome certainty to the law following Aristocrat (2025). However, based on acceptance outcomes observed prior to the High Court’s refusal, our analysis suggests that the Full Federal Court’s decision did not result in a material relaxation of examination practice for computer-implemented inventions at IP Australia.
In practical terms, the law has been clarified, but the bar has not been lowered yet, subject to any potential changes in examination practice in response to the High Court’s refusal. Success for software-related inventions remains highly case dependent and continues to rely on careful drafting, particularly in framing a genuine technical problem and a technical and advantageous solution, as well as strategic prosecution and meaningful engagement with Examiners, including through interviews.
One specific change that can be observed relates to applications prosecuted by Aristocrat itself. Several of Aristocrat applications have now progressed to acceptance after the Aristocrat (2025) decision. Accordingly, even under IP Australia’s relatively narrow interpretation of Aristocrat (2025), there may be an increase in acceptances, and potentially future filings, relating to gaming machine technology where the critical elements of patentable subject matter are clearly articulated and satisfied.
IP Australia has also received ongoing feedback from stakeholders within the IP community that the Patent Examiner’s Manual may not yet fully reflect the significance of the change in law. Further feedback is currently being considered, albeit that, strictly speaking, no new case law has emerged since the Full Federal Court’s decision in late 2025.
For practitioners and applicants alike, Aristocrat (2025) is best understood not as a green light for software patents, but as a reminder that well-articulated technical contributions remain essential, and that good patent practice still matters.
How we can help
GLMR specialises in the preparation and prosecution of patent applications for computer-implemented inventions. If you are seeking advice on protecting software-based technologies or navigating eligibility issues before IP Australia, we would be pleased to assist.
Authors
Written by Simon Reynolds and Edward Quinn
