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When it rains, it pours – appeal decisions in Australia and the UK change the law on the patentability of computer-implemented inventions
In this article Jesse Strafford recaps the recent Aristocrat (AU) and Emotional Perception (UK) appeal decisions on the patentability of computer-implemented inventions, and considers how these may influence the law on patentability in New Zealand.
High Court of Australia refuses special leave for Aristocrat
As foreshadowed in our earlier article here, the Commissioner of Patents sought special leave to appeal the decision of the Full Federal Court from Aristocrat Technologies Australia Pty Ltd v Commissioner of Patents [2025] FCAFC 131.
In a brief ruling, the High Court held:
“In light of the background to this application, there is insufficient reason to doubt the correctness of the decision of the Full Court. A grant of special leave to appeal is not in the interests of the administration of justice in circumstances in which that Full Court applied established principles concerning the assessment of manner of manufacture and reached a unanimous and clear conclusion as to characterisation.”
The High Court therefore endorsed the Full Court’s approach. This leaves the following passage (at [131] of the Full Federal Court’s decision) as the operative test for the patentability of computer-implemented inventions in Australia:
When properly characterised, is the claimed subject matter:
- an abstract idea manipulated on a computer (unpatentable), or
- an abstract idea implemented on a computer to produce an artificial state of affairs and a useful result (patentable)?
An update to IP Australia’s examination manual is expected following the consultation already signalled. The High Court’s confirmation of the appropriate manner of manufacture analysis is likely to result in a more permissive examination practice and to influence future appellate decisions.
Emotional Perception – UK Supreme Court reshapes the law on computer-implemented inventions
Only a week later, the UK Supreme Court delivered a landmark decision on patentability in Emotional Perception AI Limited v Comptroller-General of Patents, Designs and Trade Marks [2026] UKSC 3. We earlier reported on the Court of Appeal’s decision including further background here.
The Supreme Court agreed with the Court of Appeal’s characterisation that an ANN (artificial neural network) constitutes a computer program. Once this was confirmed, the Supreme Court was required to address the broader question of how computer-implemented inventions generally should be assessed for patentability, and whether the longstanding Aerotel framework remained appropriate.
In a significant shift, the Supreme Court overturned the Aerotel test, adopting an approach more aligned with European Patent Office practice, commonly described as the “any hardware” approach. Under this approach a claim is not excluded from patentability so long as it involves the use of any physical hardware. This threshold is expected to be much easier to satisfy than the Aerotel exclusion.
However, once the “any hardware” barrier is passed, European (and now UK) practice requires an intermediate step: identifying which features contribute to the invention’s technical character, and disregarding those that do not. The Supreme Court stressed that the Pozzoli framework for assessing inventive step remains unchanged. It is possible and perhaps logical, that this “intermediate” analysis may integrate with the identification of the “inventive concept” under Pozzoli, though this remains to be seen.
While some of the previous excluded subject matter will still have substantial difficulty clearing the inventive step hurdle, the Supreme Court’s ruling will substantially reduce the subject matter objections that computer-implemented inventions have historically faced in the UK.
What might this mean for New Zealand?
Section 11 of the New Zealand Patents Act 2013 provides that “a computer program is not an invention”, but only to the extent that a claim relates to a computer program as such. This language was influenced by UK law and, in particular, the Aerotel decision, which has now been overruled.
Given,
- the legislative history of s 11,
- subsequent New Zealand case law, and
- developments in technology and international jurisprudence,
there may now be scope for a more liberal interpretation of s 11, aligned with the UK Supreme Court’s reasoning in Emotional Perception.
Most notably, where a claimed invention involves a hardware component, and especially where there is meaningful interaction between hardware and software, a stronger argument now exists that the invention should be considered patentable subject matter in New Zealand.
We expect clarification through case law and IPONZ practice in due course and will keep you updated.
If you have any questions about patentability in Australia or New Zealand, whether in relation to computer-implemented inventions or any other technology, please get in touch.
Jesse Strafford – February 2026
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