Some time ago – indeed, BC (i.e. before COVID) – I reported on a decision of Justice McKerracher in the case of Repipe Pty Ltd v Commissioner of Patents  FCA 1956 (RePipe No 1). RePipe is a plumbing business based in Western Australia that has developed a risk management software system called rerisk®, which is available as a service to other businesses that want to improve their workplace health and safety (WHS) processes. The system comprises a server-based backend, and an app that can be installed on portable devices (i.e. smartphones or tablets) carried by workers on site. In use, information and documentation pertinent to WHS compliance processes for particular jobs carried out by workers at specific locations are downloaded to the portable devices. The system provides prompts and checklists to ensure that workers comply with relevant procedures, generates alerts when problems or risks are identified, and enables information provided by the workers to be uploaded back to the server and/or communicated to other workers on site.
RePipe has filed patent applications in a number of jurisdictions. In Australia, two innovation patents covering the rerisk® system were examined and found liable to be revoked by the Patent Office, on the basis that their claims were not directed to patent-eligible subject matter, i.e. a ‘manner of manufacture’ under the Australian law. RePipe appealed to the Federal Court, which upheld the Patent Office decisions in RePipe No 1, issued on 22 November 2019. The court found that the claimed inventions were, in substance, merely unpatentable business methods. The claims were not saved by the fact that the inventions were necessarily implemented in software. As Justice McKerracher explained (RePipe No 1 at -):
No specific application software has been claimed or even identified in any claim of the Patents. No computing programming logic or code is disclosed anywhere in the Patents. The substance of both inventions is a mere scheme that can be implemented using some unidentified software application to cause a server computer and smartphone to perform the steps identified in the claim. To implement the scheme, a reader must use his/her own skill and knowledge to write an appropriate software application. No such application is disclosed in the Patents.
…The language used by patent attorneys when drafting and amending claims cannot convert what is, in substance, an unpatentable business method or scheme into a patentable invention by merely asserting that the invention is in the field of computer technology or by using words in the claim or specification that refer to computer technology …. As a matter of substance, there is no meaningful technical content in the description in the body of the claims or specification.
This was not, however, the end of the story. Following some further ado (discussed below), RePipe has filed an application for leave to appeal to a Full Bench of the Federal Court of Australia, on 2 March 2021.