5.6.8.7 Games and Gaming Machines

Date Published

Overview

Games in and of themselves are not patentable as being merely mental processes, abstract ideas, or schemes.

A game does not become eligible subject matter merely because it is played with the assistance of cards, tokens, or a games board which are characterised by intellectual information related to the rules of the game. A game's apparatus may be patentable where it has a practical utility other than merely allowing the game to be played. See, for example, 5.6.8.5 Printed Matter.

Similarly, rules to or conduct of a game are not considered patentable merely because the game is played on a generic computer. Instead, patentability may be found where a game is implemented on a machine with interdependence between the game and the physical features of the machine. The invention in question in Aristocrat Technologies Australia Pty Ltd v Commissioner of Patents [2025] FCAFC 131 involved the use of configurable symbols in a feature game played on a specifically constructed electronic gaming machine.  Their Honours found that:

“...the configurable symbols and the feature games require implementation in the EGM, and in the operation of the EGM, they interact with, and are entirely dependent upon, other integers of the claim, especially the physical integers, and therefore are inextricably connected with the player interface.”

When considering patentability of such inventions, examiners should give consideration to the nature of physical features present, along with their interdependence with the game-play. 

Where a game is implemented on a machine with interdependent physical features then patentability may be found. This is to be contrasted with a game on a generic computer system where an invention is likely not directed towards a manner of manufacture.

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