What computer-related inventions can be patented

What to consider before applying

In Australia, computer software, hardware and computerised systems and methods may be patented if they meet the patentable subject matter requirement and all other legal requirements.

Before you apply, ask yourself:

• is it eligible for patent protection, that is, is it the type of invention that can be patent protected?
• is the invention new?
• is it inventive, and different enough to what's been done previously?
• is your invention clearly described, so the public knows what you have invented?
• are there enough instructions included so a person working in the technology field can make the invention without undue experimentation?

Even if you think the answer to each question is 'yes', patent law determines whether these requirements are met.

Can I patent software?

Software, computer products, and computerised methods or systems are not specifically excluded from patent protection. However, they are only patentable if the true character of the invention is sufficiently artificial and useful, legal concepts that can be tricky to assess.

Computer based 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 true character

Whether a computer-related invention is patentable depends on more than its form or how it is described. To be patentable, the true character of the invention must involve more than using a standard or generic computer to perform an otherwise unpatentable business method, scheme, game, plan or idea.

Understanding the character of an invention comes down to how the invention works, including what contribution the invention makes. For example, does the invention involve a technical effect, is it altering or improving the operation of a particular device or system, is it addressing some kind of technical problem within or outside of the computer or system, or on the contrary, is it improving something more abstract?

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 as all the other legal requirements).

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 it is useful or can only operate on the internet.

The true character of the claimed invention is assessed together with the description in your application. The level of detail in the specification can show where the invention's contribution lies and whether it is sufficiently artificial or technical.

If the application lacks detail about how the computer or other technology is used, this may suggest the invention is directed to a scheme rather than a technical innovation. For this reason, you should clearly explain how your invention works in a technical way.

Apps

Most of the time, an app simply performs known functions. Even though you may have invented a new way of doing business or providing a service using an app, your app or method generally won't be patentable unless the invention relates to addressing some kind of technical problem or alters the way in which a general purpose smartphone or tablet or 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 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. This 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 true character 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 these inventions is assessed using the same principles as discussed above, with the focus on the character of the claimed invention. A technical innovation may arise within the computer or outside of it.

For example, where an external apparatus or system is altered or improved, such as by making it more energy efficient or physically better in some other way, the invention does not also need to involve an innovation in how the computer works or performs.

Another relevant factor is how the physical features of the claimed method interact to make the invention work, including the level of detail provided in the description about that interaction.

The existence of a physical effect outside of a computerised method or system can be indicative of patentable subject matter, however, it is also necessary to consider the cause of this physical effect and whether it arises 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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