Software patents and National Research Development Corporation v Commissioner of Patents [1959] HCA 67

The watershed case that considered Manner of Manufacture – which is patentable subject matter in Australia - is National Research Development Corporation v Commissioner of Patents (“NRDC” case) [1959] HCA 67.

Even though it appears to have no direct connection to software, this case is almost invariably used to justify the patentability / non-patentability of software (depending on your needs!), so it is worth being aware of the case.


The invention by NRDC was to a method for eradicating weeds from crop areas containing a growing crop, which comprises applying to the crop area a herbicide of known chemicals. The Commissioner of patents argued that the invention was not a manner of manufacture because:



The invention by NRDC was to a method for eradicating weeds from crop areas containing a growing crop, which comprises applying to the crop area a herbicide of known chemicals. The Commissioner of patents argued that the invention was not a manner of manufacture because:
Their Honours rejected the Commissioner of Patent’s arguments. Their Honours stated that it was a mistake to ask “is this a manner or kind of manufacture”. It is a mistake which tends to limit one’s thinking by reference to the idea of making tangible goods by hand or by machine. The right question is “is this a proper subject of letters patent according to the principles which have been developed for the application of section 6 of the Statute of monopolies”.
Furthermore, trying to precisely define manufacture is bound to fail. The purpose of section 6 was to encourage national development in a field which already in 1623 was seen to be excitingly unpredictable. It would be unsound to the point of folly to attempt to do so now. The concrete applications of the notion which were familiar in 1623 can be seen to provide only the more obvious not to say the more primitive, illustrations of the concept.
There Honours emphasised that the correct emphasis is that application of a manner of manufacture results in an artificially created state of affairs, and that a manner of manufacture has an industrial, commercial or trading character in that it belongs to a useful art as distinct from a fine art, and consequently its value to the country is in a field of economic endeavour.
While these criteria would certainly seem to generally permit the patentability of a computer programmed to perform a task, it's application by the courts has been somewhat inconsistent.