What computer-related inventions can be patented

Can I patent software?

While there are no specific exclusions for patenting software or computer products or computerised methods or systems, they can only be patented if the ‘substance of the invention’ contains sufficient artificiality and usefulness. This can be tricky to determine. 

Before you apply, ask yourself:

• is the invention new?
• is it inventive, and different enough to what's been done previously?
• is it eligible for patent protection, that is, is it the type of invention that can be patent protected?

Computer-based inventions are eligible for patent protection provided they comply with Australian patentability legal requirements. Such inventions can be disclosed in various forms, including:

• software
• software implemented on a computer
• a computer configured to perform a specific function
• a computerised process or method or system
• a physical product that includes a computer, such as a smart phone, gaming machine, or a household appliance.

How to understand the substance

The patentability of computer-related inventions depends on more than just their form or the way in which the invention is explained.

To be patentable, the true character or 'substance' of the invention must be more than the mere use of a generic computer to carry out an otherwise unpatentable business method, scheme, game, plan or idea. Understanding the substance comes down to how the invention words, including the contribution that the invention makes. Does the invention lie in a technical aspect, is it improving the operation of a particular device or system, or is it improving something more abstract?

When it comes to computer-implemented inventions, simply putting a business method, a scheme or an abstract idea such as a mathematic idea into a computer is not patentable, unless there is an invention in the way in which the computer carries out the scheme or method. It must be more than “what” the computer is doing, and instead be more like “how” the computer is actually operating to improve the computer's operation.

For example, if you found a way to make the computer process data in a faster way, or store data more efficiently than what was previously known, that is, a more efficient data compression technique, then it may be patentable (if it qualifies on novelty and inventive step considerations as well).

The fact that a claimed method can only be implemented in a computing environment, does not guarantee that it will be eligible for patent protection. For example, a scheme is not eligible for patent protection simply because the application and utility of the scheme is limited to, or can only exist in the context of the internet.

Note that the substance of the claimed invention is determined in conjunction with the description in your application. The detail provided in the specification with regard to various aspects of the invention is an indicator of where the substance lies, and whether this relates to something that is sufficiently artificial or technical. Lack of detail or specificity in how the computer or other technology is used may indicate that the invention is directed towards a scheme, rather than how the computer or other technology operates to provide a technical innovation. Therefore, it is in your interest to provide comprehensive details on how your invention works in a technical manner.

Smartphone applications

Most of the time, an app simply performs known functions. Even though you've invented a new way of doing business, your app won't be patentable unless the substance related to a technical improvement or improves the manner in which a general purpose computer operates.

Examples of what applications can be patented

Copyright

In Australia, source code, executable code, data banks and tables are automatically protected under copyright legislation. You don't need to register it, as copyright exists automatically from the moment the work is created.

The code also doesn't need to be ‘original’ in the sense that nobody has written similar code before. To qualify, authors need to demonstrate that they've used their skill and labour to create the software in question, without copying someone else’s work.

Copyright also covers published materials accompanying software such as user documentation, website content, and software user interfaces in the form of original text, images and layout.

Note that copyright protects the specific code of a computer program, but it doesn't protect the ideas or methods the program employs.

Copyright in Australia

Do I have copyright protection in other countries?

Not all foreign countries recognise copyright for code, data banks or tables. Some have processes you'll need to follow to be protected.

If you wish to ensure overseas copyright, we recommend that you don't publish your work until you've consulted with a patent attorney.

Open source code

Before deciding to use open source software or release your own code under an open source licence, carefully consider the terms governing use and distribution and their legal consequences. Open source code often comes with the benefit of tapping into a community of developers. However, you should also be aware of the IP implications of using existing open source code for your own software or releasing your own code as open source.

There are many standard forms of licence terms which are used for open source software. It’s typical for these licenses to place restrictions on the redistribution of the open source software, or software bundled with or built upon the open source software.

For example, if you use open source code as part of your work, there may be an expectation that your code will become subject to the same open source licence as the code you’ve used. Which means there might be an expectation that it can also be freely copied, studied, adapted, modified and distributed. This may get beyond your control and leave you unable to commercialise its use.

Can I patent hardware?

Yes, physical devices that work in an improved way over previously known devices can be patented.

This includes:

• complete computer systems
• computer components such as disk drives, memory chips, bus architectures and monitors
• accessories for computers, such as a keyboard with an improved construction
• 'Internet of Things'-type devices that have specific functions and incorporate processors.

As with software, a consideration of the substance of the claimed invention is necessary. The key to the ability to patent your invention is that it has 'improved working'. For example, if you invented a storage disk that has a new format or data layout that results in fewer errors, increased data storage, or faster access, you can patent it. However, if your disk only differs from existing disks due to the information stored on it, it cannot be patented.

Mixed computer-implemented inventions

Inventions that involve a computer interacting with physical elements or objects external to the computer, can be patentable.

The patentability of such inventions is determined along the same principles as discussed above, with the emphasis on where the substance of the claimed invention lies. The presence of an innovation involving technology can occur inside or outside the computer. For example, if there is an improvement in a scientific model or engineering outside of the computer, such that improves the working of an apparatus outside of the computer (for example through making some other apparatus more energy efficient or otherwise physically improved), it is not necessary that there is an innovation in the way a computer performs an associated calculation.

Another factor that is taken into account is the degree to which the physical features in your claimed invention interact with features of the implemented method to allow the invention to work, with consideration of the detail of the interaction given in the description.

The existence of an external physical effect can be indicative of patentable subject matter, however, it is also necessary to consider the underlying cause of this physical effect and whether it arose as the result of a scheme or something technical.

Integrated circuit layouts

Circuit layouts are the layout designs of computer chips or semi-conductor chips. In Australia, they're generally not patentable, however, they're automatically protected by legislation that's modelled on copyright law principles.

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