In Australia business systems can be patented provided they satisfy the usual conditions of patents including novelty. See the recent report of the Advisory Council on Intellectual Property.

But a pure business system patent (without a technology base) has not yet been upheld by a court.

Kim Weatherall recently discussed Grant v Commissioner of Patents [2005] FCA 1100 which refused an appeal from the Commissioner of Patents’ decision to refuse to register a patent application for "a method for structuring a financial transaction, the purported effect
of which is to protect an individual’s assets (presumably against the
lawful claims of the individual’s creditors)". Branson J decided there was no manufacture involved and there was no economic value for Australia in the method.

Previously in Re Innovation Patent No 2004100848 in the name of Peter Szabo and Associates Pty Ltd [2005] APO 24 a lawyer unsuccessfully sought to patent (as an innovation patent) a method for a reverse mortgage (whereby elderly borrowers can borrow on the security of their asset with no payment required until sale or earlier death). He failed as there was no technology involved, only contracts and mathematical formulae.

Professor Weatherall commented that the initial reasons given by the Patents Office (you can’t patent the law) was one that the appeal judge should have supported. I agree.

Lawyers (particularly in financial and estate planning) are more frequently claiming trade marks in the names of their products and claiming copyright over their documents. There is no doubt that a lawyer who has devised a system to deal with a particular problem and has invested time and money in documenting it so that it can be commercially exploited is entitled to protect the product of their knowledge and work. But is it really patentable?

Lawyers who are early to a field may have a window of opportunity which they can consolidate through ongoing work and expertise but I have to agree that the mere application of the law as a business method should not be patentable.

UPDATE: see Kim Weatherall and Warwick Rothnie