Today the High Court of Australia dismissed an appeal from the decision of the Full Court in Commissioner of Patents v Aristocrat Technologies Australia Pty Ltd [2021] FCAFC 202 as reported earlier here. The earlier decision concerned whether Aristocrat’s patent claim for a system and method for providing a feature game to be played on an electronic gaming machine (“EGM”) was patentable subject matter.

Whilst the High Court unanimously held that the Patents Act imposes a threshold requirement that there be an invention, the Court was divided 3:3 on the proper characterisation of that invention. Three Justices characterised the invention as nothing other than a claim for a new system or method of gaming, and that the only thing differentiating it from the common general knowledge was the unpatentable idea of the feature game. The other three Justices characterised the invention as an EGM incorporating an interdependent player interface and a game controller which included feature games and configurable symbols, and the operation of the EGM involved an artificial state of affairs and a useful result amounting to patentable subject matter. Consequently, as a majority is required to overturn the earlier decision, the appeal was dismissed.