Recent court decisions in the U.S. and Australia seem to indicate that the uncertainty regarding software inventions will continue.
In Australia, the Federal Court recently determined that “[i]n the case of computer programs, it is necessary to look to the application of the program to reproduce a practical and useful result, so that more than mere information is involved.” (Research Affiliates LLC v Commissioner of Patents [2013] FCA 71 (13 February 2013).) Later statements in the decision suggest that the invention must amount to more than steps that could be carried out manually. Moreover, the invention, when involving the use of a computer, must use the computer in a meaningful way, i.e., “more than the use of a computer for a purpose for which it is suitable.” (Research Affiliates at paragraph 72.) This blurs the line as to what is patentable since the judgment of a meaningful use is fairly subjective.
The situation is not any better in the U.S. In an appeal involving ten judges, the court decided that the underlying software invention was not patentable, but could not agree as to why. (CLS Bank v Alice Corp, 2011-1301 (Fed. Cir.)(10 May 2013).) The decision included no less than six separate opinions, with some judges concurring in some aspects and dissenting in other aspects. Coincidently, one of the parties, Alice Corp, is an Australian company. The case was widely expected to give certainty to the issue, but instead has further muddied the waters, paving the way for a possible decision by the U.S. Supreme Court.
While there is uncertainty about the patentability of software inventions, courts in both Australia and the U.S. continue to acknowledge that software inventions deserve patent protection. The great unknown is how much!!