Recent decisions in Australia and the United Kingdom mean that New Zealand and Australia are now following unique approaches to the patentability of computer implemented inventions.
New Zealand and Australia now each have different, and unique, approaches to the patentability of computer implemented inventions (CIIs). The differences between these approaches and those in other jurisdictions means you should consider the opportunities and risks of filing CIIs in Australia or New Zealand instead of relying on outcomes overseas.
Australia
The Australian High Court decision to refuse special leave in the Commissioner of Patents v Aristocrat Technologies Australia Pty Ltd (S153/2025) means that the most recent Full Court decision[1] stands (following the previous deadlocked decision[2] by the High Court on a connected case in the name of Aristocrat). The Full Court decided that the core question for patentability of CIIs is whether the invention is a ‘manner of manufacture’. This returns to NRDC[3], which determined that ‘manner of manufacture’ requires consideration of whether the ‘invention is ‘an artificially created state of affairs in the field of economic endeavour’ with a ‘useful result’.
The Full Court explained that the determination should, for CIIs, be approached as considering if the invention relates to the use of a machine to manipulate an abstract idea (not patentable), or whether the invention is an abstract idea implemented on a computer to produce an artificial state of affairs and a useful result (patentable). The application of this test often requires analogy to earlier decided cases given the difficulties of defining an ‘abstract idea’ and the level of physical features beyond a generic computer required to be more than an abstract idea. This approach is likely broader than the alternative approach which had been applied.
The High Court has previously stated that reference to decisions of overseas authorities are of limited assistance or may be dangerously misleading in Australia. Examples of overseas approaches which are not relevant in Australia include the United Kingdom’s requirement for the invention to have a technical character, and the United States specifying patentability for ‘any new and useful improvement.’ The latest Full Court decision does not align Australia more closely with other overseas authorities.
New Zealand
The Emotional Perception decision by the United Kingdom Supreme Court has[4] discarded the previously applied ‘Aerotel test’[5] in favour of the ‘any hardware’ approach affirmed by the Enlarged Board of the European Patent Office (EPO). The decision proposes an ‘intermediate step’ of filtering out features of the invention which do not contribute to, or interact with, the technical character of the invention when viewed as a whole.
The New Zealand Patents Act 2013 adopted the United Kingdom and EPO wording to disallow inventions which were computer programs ‘as such.’ This was seen to provide a rigorous test alongside the ability to refer to United Kingdom case law (given the low levels of New Zealand case law generally, and particularly case law relating to CIIs). However, the New Zealand Patents Act went further, explicitly codifying the first three steps of the Aerotel test. The Patents Act also intentionally avoids the inclusion of the fourth step (whether the claim has a technical character or effect) and lacks the specific requirement of EPC Article 52 of the requirement to allow inventions in all fields of technology.
As a result of the United Kingdom Supreme Court’s recent decision, New Zealand law may have to develop independently – the Aerotel test is unlikely to be applied on any future cases in the United Kingdom, and the inclusion of the first three steps in the New Zealand Patents Act potentially forces the continued application of the Aerotel test in New Zealand. It is unclear if the United Kingdom Supreme Court’s argument that the test of ‘invention’ should not be jumbled up with the requirements for patentability will be sufficient to change this approach.
Summary
The continued use of the Aerotel test in New Zealand is likely to result in the continuing challenge of how to distinguish the requirements of when an invention produces an effect outside of the computer that the program is running on without referring to technical effect. IPONZ hearings decisions, such as Isolynx[6] and Amadeus SAS,[7] show the complexity of this approach as implemented in New Zealand.
In Australia the return to the ‘manner of manufacture’ test provides an extended history in case law. However, there will be the challenge to understand the limits of ‘manner of manufacture’ when applied to developments in CIIs.
If you have questions about protection of your computer implemented invention in New Zealand or Australia, please get in touch with our team.
[1] Aristocrat Technologies Australia Pty Ltd v Commissioner of Patents [2025] FCAFC 131
[2] Aristocrat Technologies Australia Pty Ltd v Commissioner of Patents [2022] HCA 29
[3] National Research Development Corporation v Commissioner of Patents [1959] HCA 67; (1959) 102 CLR 252 (NRDC)
[4] Emotional Perception AI Limited v Comptroller General of Patents, Designs and Trade Marks [2026] UKSC 3
[5] As set out in paragraph 40 of the judgment of the England and Wales Court of Appeal in Aerotel Ltd v Telco Holdings Ltd & Ors Rev [2006] EWCA Civ 1371
[6] IsoLynx, LLC [2022] NZIPOPAT 16
[7] Amadeus SAS [2022] NZIPOPAT 20
