Is Australia as innovative as it claims?
- 12 May, 2016 10:46
Innovators across the country are taking deep breaths, as uncertainty builds following the High Court of Australia’s decision to dismiss education facilitator RLP Central’s software patent application case.
During the ruling, the court found that RLP Central’s invention was a “business innovation”, concluding that computer implementation was “insufficient to constitute an invention its own right”.
According to the court, computer implemented business methods are patentable in Australia, but only if the invention resides within the actual implementation of the business method by the computer.
As such, Shelston IP principal, head of IT and electronics group, Jack Redfern, claimed the decision signalled that the High Court does not wish to vary the newly developed judicial law created by the Federal Court, with Australian patent applicants and patentees now counting to adapt to the arbitrary law as set out in more recent Federal Court decisions.
For Redfern, the decision was not only bad news for education facilitator RLP Central, but provided “a blow” to the nation’s much touted innovation agenda.
“It’s at loggerheads with, and undermines, Australia’s innovation aspirations,” he said. “After all, computer-implemented technologies are vital to our digital future, and particularly critical to the expanding ed-tech sector.
“Exciting and highly innovative computer-implemented technologies are being developed right here in Australia by start-up or micro companies and cash strapped fledging ed-tech entrepreneurs.”
Redfern said without the financial safety net that a patent provides to protect intellectual property, and to leverage from it, many people may decide the risks just aren’t worth it and quit the innovation scene in Australia.
“The other alternative is that the developments will be simply kept secret, which will slow the cross-fertilisation of technologies that the patent system enables through publication of patent applications,” he claimed.
Specific to the RLP Central case, the patent application related to the software platform that enabled users to input Recognition of Prior Learning information via an online ‘question-and-answer’ process.
The court formulated a new test to assess the invention, deciding that a technological innovation is patentable, but a business innovation is not and “simply putting a business method or scheme into a computer is not patentable unless there is an invention in the way in which the computer carries out the scheme or method.
Consequently, the decision was reprimanded for failing to provide “adequate guidance” as to what is required to constitute an “invention” in the way in which a computer is used in the context of a commercially-minded innovation.
“As the court derived test for computer-implemented inventions has fogged over what was a clear day, it may be time for the legislature to step up and blow away this uncertainty,” Redfern added.
“It’s one thing to talk about innovation, bright ideas and the like but without the educational, legal and regulatory frameworks to support and nurture its development, turning the rhetoric into a reality is academic.”