Repipe Pty Ltd v Commissioner of Patents

Repipe Pty Ltd sought special leave to appeal from a decision of the Full Court of the Federal Court of Australia. The dispute concerned the patentability of a computer-implemented invention, specifically whether a patent claim involving a combination of computer-implemented functions must demonstrate an advance in computer technology to qualify as patent-eligible subject matter. The applicant argued that the central issue was of significant importance due to substantial investment in digital inventions in Australia and that the Full Court had erred in its application of patentability principles.

The High Court was required to determine two primary legal issues. The first was the substantive question of whether the invention constituted patent-eligible subject matter, with the applicant contending that the Federal Court had applied an incorrect test by focusing on whether the invention represented an "advance in computer technology" rather than adhering to the principles established in *D’Arcy v Myriad Genetics*. The second issue, raised by the Court, concerned the competency of the appeal, specifically whether an appeal to the High Court from the refusal of the Full Court to grant leave to appeal was barred by section 33(4B) of the *Federal Court of Australia Act*.

The applicant argued that the correct test for patent eligibility, as derived from *NRDC* and applied in *Myriad*, requires an invention to be a process producing an outcome of human action with economic utility. It was submitted that the Full Court, particularly Justice Perram, had erroneously substituted the "advance in computer technology" test for these established principles. The applicant contended that even if individual functions were known, their combination could be patentable, and that the focus on "generic computing technology" was unhelpful and contrary to established authority. Regarding competency, the applicant argued that the refusal to grant leave to appeal was not a judgment in the exercise of the Federal Court's appellate jurisdiction, thus section 33(4B) did not apply.