A new study from our Office of the Chief Economist reveals Australia is more likely to grant a patent for a computer implemented invention (CIIs) than the European Patent Office (EPO) but less likely than our American counterparts.
Under Australian law, CIIs (sometimes referred to as "software related inventions") are only patentable if they meet the criteria of subject matter eligible for patent protection.
Rapid advances in technology have presented serious challenges to patent offices and applicants across the world in deciding whether a CII is eligible for a patent, and some patent offices apply different rules to decide eligibility.
To help understand the current trends in CII and patenting, our research partner, the Centre for Transformative Innovation at Swinburne University of Technology, has investigated:
- the relative outcomes of CII patent applications when examined across Europe, the United States and Australia
- the likelihood of patent applicants filing patents for CIIs in Australia after filing for CII patents at the EPO and United States Patent and Trademark Office (USPTO)
- the impact of relevant court cases, and how changes in legal standards have influenced applicant behaviour in Australia and other countries.
The analysis reveals 32% of patent filings in Australia are for computer implemented innovations and around 6% of these applications are on the borderline of what can be patented.
Australia is less likely to grant such applications than the USPTO and more likely to grant such applications than the EPO.
The report reveals that after applicants file patent applications at the USPTO, they are less likely to file equivalent patents (for the same or similar inventions) in Australia if the patent is for a CII, compared to other technologies. However, this impact on filing behaviour is partially mitigated if the patent has high economic and technological value.
The impact of court decisions on CII patent behaviour was not consistent across the 3 jurisdictions.
The Australian court decision in Research Affiliates vs Commissioner of Patents (2014) did reduce the likelihood of past CII applicants filing subsequent CII patents in Australia. This decision had less impact on domestic innovators than innovators from other countries, who may have wider options to target alternative markets.
Understanding these issues is an important first step in evaluating the overall advantages or disadvantages of granting patent protection for computer-implemented inventions in Australia. This evidence also adds to the growing economic research on how innovators build out international patent strategies.
Read the full report for more insights on CII patent activity: