A delegate of the Commissioner of Patents has refused an application (no. 2018204629) by Amazon Technologies, Inc (Amazon) on the basis that it is not for a patent-eligible invention under Australia’s ‘manner of manufacture’ requirement: Amazon Technologies, Inc  APO 7. Amazon’s claimed invention relates to the execution of processing tasks within a cloud computing system, presumably such as its own Amazon Web Services (AWS) platform. Specifically, it provides a mechanism for applications executing on ‘virtual machines’ within the cloud system to access additional resources as required during bursts of high demand.
This is yet another case in which a computer-implemented invention that appears at least superficially ‘technical’ has been found to be unpatentable because it is, as a matter of ‘substance’, in fact an ineligible business innovation, rather than a technical innovation. There are many, many, words in Amazon’s main claims, and a lot of them seem highly technical, principally because they define the operation of a process within a technical system. But does this mean that the inventive process is, itself, technical in nature? The delegate determined that it is not. He found that Amazon’s claims were directed to a scheme in which ‘business rules’ are applied for scheduling processing tasks, while the scheduler itself was performing only its ‘usual independent function’, with ‘no improved operation of the computing technology’.
In this case, I think that the delegate’s decision is a reasonable application of the law on patent-eligibility of computer-implemented inventions, as it has been interpreted by the Australian courts. It is, however, a long decision, which could not fairly be described as light reading. It is unfortunate that decision-making in this area of the law has become increasingly arcane and obtuse. So rather than picking over the delegate’s decision, dissecting the lengthy patent claims, or reviewing the Federal Court authorities, I am instead going to do my best to explain Amazon’s invention and why it failed the patent-eligibility test in my own way, as plainly as I can. And while I believe that the delegate’s decision is justified under the current law, I shall also explain why I think the law under-emphasises the technical context in which inventions such as Amazon’s are devised, and why a more nuanced approach might be more appropriate.