Can I patent software?
While there are no specific exclusions for patenting software or methods that are implemented as computer software or a related product, it can only be patented if the ‘substance of the invention’ has a technical character. This can be tricky to determine.
Before you apply, ask yourself:
- Is the invention new and novel?
- Is it inventive, and different enough to what's been done previously?
- Is it suitable for patent protection?
Assessing if an idea is suitable for patent protection isn't a simple test. For computer implemented inventions, it essentially boils down to whether the ‘substance’ of the invention is:
- A technical innovation (which is patentable), or
- A business innovation (which isn’t patentable).
How to determine the substance
This comes down to the contribution that the invention makes. Does the ingenuity in your invention lie in a technical aspect, or is it improving something more abstract?
When it comes to computer-implemented inventions, simply putting a business method or scheme 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 itself.
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, then it may be patentable (if it qualifies on novelty and inventive step considerations as well).
On the other hand, if you use a computer for its 'known functions' and the innovations lie within a method of doing business, your invention won’t be patentable because the substance of the invention doesn’t involve a technical innovation.
Known functions can include:
- Data storage
- Data processing
- The basic operation of GPS depending on the type of invention.
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 is a technical improvement.
Examples of what applications can be patented
Can be patented
A messaging app that implements a new encryption algorithm for improving security of transmitted and stored messages.
Why: The substance of the invention resides in a technical innovation that improves data security.
Can't be patented
A messaging app that provides a more modern look and feel through the implementation of a new layout or different colour schemes.
Why: The substance of the invention is limited to non-technical, aesthetic aspects such as the look and feel of the interface.
Can be patented
A mobile app for reporting on workplace hazards that provides an improved data structure for storing location data, in conjunction with related image data, that results in a more efficient way of storing and retrieving such related data.
Why: The substance of the invention is directed to a technical innovation that improves the way data is stored in the computer.
Can't be patented
A mobile app for reporting on workplace hazards that utilises well-known functions of the mobile device, such as communication, GPS or camera modules, to track the location of a user and provide notifications relating to workplace defects and hazards to a user.
Why: The substance of the invention lies in the use of known technology to improve a business function, being the reporting of workplace hazards. As such, this is considered to be a business innovation as opposed to a technical innovation.
Can be patented
A game app, where the contribution lies in the implementation of improved user interface controls that allow a user to more efficiently input word guesses into a word puzzle or select a betting option and place a wager with fewer clicks or interactions.
Why: The substance of the invention results in a technical innovation that improves the usability of the game.
Can't be patented
A game app, such as a word puzzle or betting app, where the contribution lies in the application of particular game logic or rules, such as determining the outcome of a wager in a betting game or determining valid words in a word puzzle.
Why: The substance of the invention merely relates to abstract concepts that determine the outcome of the game.
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.
- 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.
The key to the ability to patent your invention is that it has 'improved working'. For example, if you invented a disk that has a new format or data layout that results in fewer errors, or increased data storage, or faster access, you can patent it. However, if your disk only differs due to the information stored on it, it can't be patented.
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.
Circuit layouts rights are administered by the Department of Infrastructure, Transport, Regional Development and Communications.
To better understand manner of manufacture and the substance of your innovation, we encourage you to seek advice from an IP attorney.
They will be able to provide specific advice on your products and services as well as your protection strategy.
Resources for attorneys
The Manual of Practice and Procedure sets out the practice that an examiner will follow.
You'll find manner of manufacture in Part 2.9. Various aspects of ICT inventions are covered by:
Practitioners will also be aware that the Commissioner intervened in the matter of Encompass Corporation Pty Ltd v InfoTrack Pty Ltd (NSD 734/2018). The
Commissioner's submissions to the court provide an overview of the their understanding of the law, and aren't a substitute for the manual.