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In a recent decision (Invention Pathways Pty Ltd [2010] APO 10 (21 July 2010)), the Australian Patent Office held that a business method directed to a method for commercialising inventions did not meet the requirements for patentable subject matter. In arriving at this decision, the Patent Office cited the much-anticipated recent US Supreme Court decision in Bilski v Kappos.
Whilst business methods per se are not excluded from patentability, the Deputy Commissioner concluded that the patentability of business method cannot arise merely from being implemented by a computer or related device in an incidental way. In so doing, the Deputy Commissioner noted with reference to Bilski that in the US “the prohibition against patenting abstract ideas cannot be circumvented by attempting to limit the use of the formula to a particular technological environment” or adding “insignificant post-solution activity”.
This decision reaffirms that business methods must satisfy the usual criteria for patentability and using a computer to implement one or more features of a business method may not be sufficient to create the required “tangible effect” and so distinguish the method from a mere abstract idea or algorithm.
Practice Tips
- Business methods are not explicitly excluded – usual patentability criteria apply.
- Computer-implementation is not necessarily sufficient to satisfy patentable subject matter.
- There must be a real, tangible result arising from the operation of the claimed process.
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