Patenting software-based aerospace inventions in Australia is not always straightforward. Not every valuable aerospace innovation will be eligible for patent protection in Australia. While advances in propulsion, materials and manufacturing are usually eligible for patent protection, software-driven innovations can face a significant additional hurdle. Understanding where Australian law draws that line is increasingly important for organisations developing digital and artificial intelligence driven aviation technologies.
Australian patent law includes a subject matter requirement, referred to as manner of manufacture, which essentially asks whether the claimed invention is the kind of “thing” that the patent system protects.
Where the line comes from
The manner of manufacture requirement has evolved over time as courts have considered new “types” of inventions and has been shaped by the aerospace industry – most notably in the well-known United Kingdom case of Rolls Royce Ltd’s Application [1963] RPC 251.
In that case, Rolls-Royce, sought to patent a method for reducing aircraft noise during take-off by following a particular operating procedure for gas turbine engines on aircraft. In rejecting the patentability of the invention, Lloyd-Jacob J noted it was ‘a general flight plan directing the initial operational movements of an aircraft between take-off and the commencement of free flying conditions, and this in my judgment is as much outside the operation of any of the useful arts as would be a trainer’s direction to a jockey in his control of a racehorse’.
Most aerospace inventions today in the fields of avionics, propulsion systems, advanced materials, composite structures and manufacturing processes are generally unaffected by the manner of manufacture test. For these inventions, patentability usually turns on whether the novelty and inventive step requirements are satisfied.
The situation for computer implemented inventions, however, is more complicated, with the manner of manufacture inquiry for those inventions having evolved over the last 35 years into a test distinct from the more traditional technological fields set out above.
For example, if we take Rolls Royce’s invention and fast forward 60 years to today, a mere set of instructions directing how a pilot should operate an aircraft would still be characterised as lacking a manner of manufacture. A computer implemented invention, however is different – software running on onboard computers, controlling sensors and engine-control hardware to automatically determine and implement thrust settings so as to reduce noise, may be characterised as a manner of manufacture and therefore patentable subject matter.
However, not all computer implemented inventions will pass the manner of manufacture test.
The manner of manufacture test for patenting software-based aerospace inventions
The current test is set out in Aristocrat Technologies Australia Pty Ltd v Commissioner of Patents [2025] FCAFC 131. The test in Aristocrat is to ask whether, properly characterised, the subject matter alleged to be patentable is: (i) an abstract idea that is manipulated on a computer; or (ii) an abstract idea that is implemented on a computer to produce an artificial state of affairs and a useful result.
As an example, software that analyses airline fleet data to determine how many spare engines to purchase to minimise inventory costs while maintaining operational availability – although extremely valuable, may be considered to be an abstract idea and lacking manner of manufacture.
In contrast, software that uses sensors on aircraft parts and uses machine learning to analyse data from those sensors and compare it against a library of images, to carry out predictive maintenance on those parts, depending on the implementation, may well be a manner of manufacture and therefore patentable subject matter.
Those familiar with US patent practice may recognise some parallels with the Alice framework used in assessing patent eligibility under 35 U.S.C. § 101. While the Australian Aristocrat test is distinct and must be applied in accordance with Australian law, arguments used successfully in corresponding US family members can often provide a useful starting point.
Much like in the US, specifications which clearly identify a genuine technical problem and provide a detailed explanation of how that problem is solved, can avoid, or at least greatly assist in successfully arguing against, manner of manufacture objections.
As technologies become increasingly software-driven, understanding whether patenting AI aerospace inventions is likely to succeed can influence investment decisions, portfolio strategy and the value ultimately captured from R&D.
Speak to our patent attorneys about protecting aerospace innovations.
