[24]/7.ai, Inc.
[2019] APO 50
•20 November 2019
IP AUSTRALIA
AUSTRALIAN PATENT OFFICE
[24]/7.ai, Inc. [2019] APO 50
Patent Application: 2015300932
Title:Method and apparatus for providing customized interaction experience to customers
Patent Applicant: [24]7.ai, Inc.
Delegate: K. Wagg
Decision Date: 20 November 2019
Hearing Date: Written Submissions 28 November 2018, further submissions 3 February 2019.
Catchwords: PATENTS – examiner objection during examination – manner of manufacture – the collection of interaction and non – interaction data of a customer to predict their intention and more prominently display content based on their data using a processor, memory and input/output module is not a manner of manufacture – no patentable subject matter in the specification – application refused.
Patent Attorney for the
Applicant:Pizzeys
IP AUSTRALIA
AUSTRALIAN PATENT OFFICE
Patent Application: 2015300932
Titles:Method and apparatus for providing customized interaction experience to customers.
Patent Applicant: [24]7.ai, Inc.
Date of Decision: 20 November 2019
DECISION
I do not find any patentable subject matter in the specification. I refuse the application.
REASONS FOR DECISION
Background
Patent application number 2015300932 (the application) was filed by 24/7 Customer, Inc, now [24]7.ai, Inc (the applicant) on 06 August 2015 through PCT/US2015/044039. The application claims an earliest priority date of 06 August 2014. Given this, the substantive amendments to the Patents Act brought about by the Intellectual Property Laws Amendment (Raising the Bar) Act 2012 apply to this case, including that the Commissioner must accept a patent request and specification if she is satisfied on the balance of probabilities that the requirements of s 49 are met. If she is not satisfied, then she may refuse the application.
A delegate of the Commissioner of Patents (the examiner) issued the First Examination Report on 4 September 2017. In that examination report the examiner raised three objections including that the claims do not define a manner of manufacture and that claims 1,12 and 18 are not novel and that claims 1-23 do not involve an inventive step. The applicant responded with arguments and amendments on 26 November 2017. The examiner issued a second report on 14 December 2017 with the objection that the claims do not involve a manner of manufacture. The applicant responded with arguments to this outstanding objection. The examiner issued a third report on 3 April 2018 maintaining the manner of manufacture objection. The applicant responded with arguments and further amendments on 5 June 2018. A fourth examination report dated 3 July 2018 was issued maintaining the outstanding manner of manufacture objection. This resulted in a further response with arguments from the applicant. The examiner issued a fifth report and a request to be heard was received by the Commissioner on 2 September 2018. Written submissions were received on 28 November 2018.
The Federal court decision[1] on Rokt was handed down on 12 December 2018 and in view of this a Delegate of the Commissioner of Patents allowed the applicant until 1 February 2019 to file further submissions in relation to that case. The further submissions were received on 3 February 2019.
[1] Rokt Pte Ltd v Commissioner of Patents [2018] FCA 1988.
The specification
The specification begins by outlining the technical field and this provides insight into what the invention relates to. It states:
“The invention relates to improving customer experiences. More particularly, the invention relates to a method and apparatus for providing customized interaction experience to customers.”[2]
[2] Specification at [0002].
This section is then followed by the background which provides more context and meaning. It discusses the interactions customers have and how this occurs nowadays in an online setting. It then becomes clear that the invention relates to predicting customer interactions:
“Some conventional mechanisms suggest collation and analysis of data generated on account of interactions between the enterprises and the customers to predict intention of the customers. However, a quality of prediction is limited by both a quality and quantity of the collated data. It is desirable to improve a granularity of predicted intention of a customer. Moreover, prediction of customer’s intention based on gathered interaction data using conventional mechanisms is a time-consuming exercise. As such, it is desirable to improve the granularity of customer intent prediction in a time-effective manner to provision a vastly improved interaction experience to the customers.”[3]
[3] Ibid at [0008].
The specification then provides a summary of the invention. This reflects the claims, including a computer implemented method. In their submissions, the applicant highlighted one embodiment in particular. It is worth repeating that embodiment here:
“…an apparatus for providing customized interaction experience to customers includes at least one processor and a memory. The memory stores machine executable instructions therein, that when executed by the at least one processor, cause the apparatus to facilitate a capturing of interaction data and non-interaction data related to one or more interactions of a customer on at least one interaction channel from among a plurality of interaction channels. The interaction data comprises information related to elements of interest to the customer from among a plurality of elements presented to the customer during the one or more interactions. The non-interaction data comprises information related to one or more remaining elements of non-interest to the customer from among the plurality of elements presented to the customer during the one or more interactions. The apparatus predicts an intention of the customer based on the interaction data and the non-interaction data. The apparatus provides a customized interaction experience to the customer in one or more interaction channels from among the plurality of interaction channels based on the predicted intention of the customer.”[4]
[4] Ibid at [0010].
The above embodiment is similar to two other embodiments given. These are the computer implemented method and the non-transitory machine-readable storage medium which is capable of storing a set of instructions which can carry out the method. The specification then provides a brief description of the figures before the detailed description. I will outline the key points from the detailed description now.
Detailed description
The detailed description discusses the figures starting with FIG 1 which is worth repeating below as it shows the “apparatus” discussed above as 100:
[5]
[5] Specification FIG 1/5
The applicant has pointed me to the definition of the apparatus 100 to be:
“…the apparatus 100 is an electronic system configured to receive data related to customer interactions, to analyse the received data, and to facilitate customization of on-going or subsequent interactions to provide a vastly improved interaction experience to the customers.”[6]
[6] Specification at [0019].
The applicant submitted that this identifies a real and practical advantage as a matter of technicality and emphasised the facilitation of customized on-going or subsequent interactions. In view of this submission I will look at the description of the customer and what is meant by interactions.
The term “customer” is defined and is simply an existing or potential user of products or services. The term “interaction” is defined as:
“The term ‘interaction’ as mentioned herein and throughout the description may refer to both unidirectional and bi-directional interaction between the customer and the enterprise. For example, a customer browsing a website of an enterprise for locating a desired product is illustrative of a unidirectional interaction between the customer and the enterprise. Similarly, a customer interacting on phone or chatting using a chat application with a customer support representative associated with the enterprise is illustrative of a bi-directional interaction between the customer and the enterprise. It is also noted that the ‘interaction’ may be initiated by the customer or proactively initiated by the enterprise.”[7]
[7] Ibid.
The specification then gives examples of interactions which relate to sales, complaints, payments and shipping or grievances and negative sentiments over social media. The next paragraph discusses the data about the interactions which can include transcripts of chats between the customer and customer service, customer activity on one or more websites and customer touch points on devices such as mobile phones and interactions from apps or from speech conversations.[8] With knowledge of what is meant by the interactions I will return to the figure shown above.
[8] Ibid at [0020].
The memory 104 is said to be capable of storing machine executable instructions[9] and may be embodied as one or more volatile memory devices, or one or more non-volatile devices or combinations thereof.[10] This is then followed by examples which include, hard drives, disks and magnetic tapes.[11]
[9] Ibid at [0021].
[10] Ibid at [0022].
[11] Ibid.
The I/O module 106 is an input/output module and is configured to communicate with the processor and memory via or through a bus, 108, with examples of it being microphone and speakers or a screen display and joystick.[12]
[12] Ibid at [0023].
The processor 102 may include input/output circuitry as well and may be configured to control one or more elements of the I/O module.
The specification then provides embodiments which involve collecting customer interaction data such as selecting or deselecting items, chat conversations, mouse rollover or movement and verbal utterances and speech interactions and viewed or non-viewed scroll history.[13]
[13] Ibid at [0028].
An embodiment of how this is customized is given at [0046] and is based on data driven approaches such as modelling or performing design of experiments. Examples include matching personality type to interaction channel, sending a self-serve link or a knowledge-based article or recommending a style of conversation to an agent during the interaction.[14]
[14] Ibid at [0046].
The specification then discusses the remaining figures. These demonstrate a customer’s journey through a website with interactions measured[15] with customisation presented[16] and then the interaction with customer service.[17] The specification states advantages of the invention:
“Various embodiments disclosed herein provide numerous advantages for enhancing a customer service experience, thereby contributing to increased attributable revenue, increased resolution rates, increased efficiency, decreased cost of service and cost of sales, increased loyalty and retention, deepened relationship and increased life time value.”[18]
[15] Specification FIG 2/5.
[16] Ibid FIG 3/5.
[17] Ibid FIG 4/5.
[18] Specification at [0064].
With all of these interactions, data is collected to make predictions. It states:
“capturing information related to ‘what a user is not interested in’, in addition to, ‘ ‘what the user is interested in,’ enables a better understanding of customer’s preferences during a journey on an interaction channel.”[19]
[19] Ibid.
The specification states that the customer, who may have interactions on a number of channels, is linked to the interaction data by their unique identifiers.[20] Examples of user identifiers are said to include, but not limited to:
“IP address, user-agent, Web cookies, third party Web cookies, order IDs, request IDs, various personally identifiable information (PII), mobile device identifiers and the like.”[21]
[20] Ibid at [0042].
[21] Ibid.
The link between the unique identifier and the customer is said to be done:
“across channels and devices within the same session, as well as across sessions probabilistically based on machine learning and statistical models driven by behaviour and other attributes of customer journeys.”[22]
[22] Ibid.
It is the use of interaction and non-interaction data which can enable a better understanding of the customer that is said to be a benefit of the invention:
“The capturing of the interaction and non-interaction data collected over multiple interaction channels can help achieve higher granularity of prediction of customer intention and help make faster recommendations to the customer in real-time resulting in a higher possibility of conversations, for example a sale of a product. Accordingly, the determination of non-interaction data in addition to the interaction data facilitates a fairly accurate intention prediction in a time-efficient manner. Further, such a manner of data collation and intention prediction enhances accuracy of personalization of websites and/or customer service calls and/or chats for different customers. For example, the techniques disclosed herein facilitates in presenting different versions of the same website to different customers, thereby enabling a unique user experience for each customer.”[23]
[23] Ibid.
With this description of the invention and its advantages in mind I will now introduce the claims.
The specification ends with 20 claims, with 1, 11 and 16 being independent claims.
The claims
Claim 1 states:
A computer-implemented method, comprising:
facilitating, by a processor, a capturing of interaction data and non-interaction data related to interactions of a customer collected over a plurality of interaction channels, the interaction data comprising information related to elements of interest to the customer from among a plurality of elements presented to the customer during the one or more interactions, the non-interaction data comprising information related to one or more remaining elements of non-interest to the customer from among the plurality of elements presented to the customer during the interactions;
creating linkages across multiple interaction channels probabilistically based on machine learning and statistical models driven by captured interaction data and one or more unique identifiers associated with the customer;
predicting, by the processor, an intention of the customer based on the interaction data, the non-interaction data, and interaction history across the linked interaction channels, wherein the prediction is facilitated by passing of an interaction context related to the interactions among any linked interaction channel from among the plurality of interaction channels;
detecting, by the processor, a presence of a customer in an interaction channel from among the linked interaction channels; and
providing, by the processor, a customized interaction experience to the customer during an on-going interaction in the interaction channel having the detected presence, wherein the customized interaction experience includes customer-intention specific website content generated based on the predicted intention being displayed more prominently than non-customer-intention specific website content.Claim 1 is to a computer implemented method comprising various steps of facilitating the capturing of data, creating linkages then making predictions and detecting and providing customisation based on those predictions. Claim 11 is directed to the apparatus which has a processor and memory that can facilitate the same steps as claim 1 and claim 16 is to a non-transitory computer-readable medium storing a set of instructions that when executed carries out the steps of claim 1. Claims 2-10 are dependent on claim 1, claims 12-15 are dependent on claim 11 and claims 17-20 are dependent on claim 16. I have provided the description of the terms “customer” and “interaction” above so I will now move onto the examiner’s objection.
The law
Examination of the patent application in suit has been carried out under Section 45 and an impasse has occurred in relation to paragraph 45(1)(b) in relation to paragraph 18(1)(a). Under section 49 the Commissioner must accept a patent application if the Commissioner is satisfied, on the balance of probabilities, that the invention, so far as claimed, satisfies the criteria mentioned in paragraph 18(1)(a) of the Act.[24] Thus, the standard of proof is that if I am satisfied, on the balance of probabilities that the specification meets the requirements of section 49 then I must accept the application. If I am not satisfied, then I may refuse the application.
[24] s 49(1)(b).
Paragraph 18(1)(a) states that:
(1) Subject to subsection (2), an invention is a patentable invention for the purposes of a standard patent if the invention, so far as claimed in any claim:
(a) is a manner of manufacture within the meaning of section 6 of the Statute of Monopolies…
I also note that Schedule 1 defines an invention as:
invention means any manner of new manufacture the subject of letters patent and grant of privilege within section 6 of the Statute of Monopolies, and includes an alleged invention.
Section 6 of the Statute of Monopolies 1624 (imp) has always been a part of patent law in Australia with one of the most famous early cases being “The NRDC case”[25] with reference to the following extract:
"The point is that a process, to fall within the limits of patentability which the context of the Statute of Monopolies has supplied, must be one that offers some advantage which is material, in the sense that the process belongs to a useful art as distinct from a fine art ... that its value to the country is in the field of economic endeavour."[26]
[25] National Research Development Corporation v Commissioner of Patents (1959) 102 CLR 252.
[26] Ibid at [275].
This principle was developed with “an artificially created state of affairs” taken to be understood in the sense of a concrete, tangible, physical, or observable effect.[27]
[27] Grant v Commissioner of Patents [2006] FCAFC 120; 234 ALR 230 at [30], 237.
In D'Arcy v Myriad Genetics Inc[28] the case related to isolated nucleic acid sequences and the court noted that the artificiality of a product may be perceived by a number of factors and that it is necessary that the inventive concept be seen to make a contribution to the essential difference between the product and nature.[29] The enquiry was said to be one of substance over form:
“Whatever words have been used, the matter must be looked at as one of substance and effect must be given to the true nature of the claim.”[30]
[28] [2015] HCA 35.
[29] Ibid at [128].
[30] Ibid at [144].
The court noted that the step of isolation was not invented in that case and instead was longstanding technology well known to those skilled in the science.[31] This led to the finding that the substance of those claims to isolated nucleic acid sequences is the information embodied in the arrangements of nucleotides; the information was not “made” by human action and therefore was not suitable subject matter for a letters patent.[32]
[31] Ibid at [146].
[32] Ibid at [6].
The Full Federal Court decisions of Commissioner of Patents v RPL Central Pty Ltd[33] (RPL Central) and Research Affiliates LLC v Commissioner of Patents[34] (Research Affiliates) were both the focus of patent applications which used computers but were subsequently found to not involve a manner of manufacture. The Deputy Commissioner summarised the legal principles from those cases in Aristocrat Technologies Australia Pty Limited:
[33] (2015) 328 ALR 458; (2015) 115 IPR 461.
[34] (2014) 227 FCR 378.
“I conclude that it is relevant to consider a range of matters. Without seeking to be exhaustive, these include:
·there must be more than an abstract idea, mere scheme or mere intellectual information;
·is the contribution of the claimed invention technical in nature;
·does the invention solve a technical problem within the computer or outside the computer;
·does the invention result in improvement in the functioning of the computer, irrespective of the data being processed;
·does the application of the method produce a practical and useful result;
·can it be broadly described as an improvement in computer technology;
·does the method merely require generic computer implementation;
·is the computer merely an intermediary or tool for performing the method while adding nothing of substance to the idea;
·is there ingenuity in the way in which the computer is utilised;
·does the invention involve steps that are foreign to the normal use of computers; and
·does the invention lie in the generation, presentation or arrangement of intellectual information.”[35]
[35] [2016] APO 49; 123 IPR 341 at [35], 353.
I note that in that case the Deputy Commissioner found that the Examiner’s characterisation of the substance of the invention was not correct[36] and instead a manner of manufacture lay in what once took two actions, or two choices, was combined into one single action.[37] Furthermore, unlike Research Affiliates, the computer was not intermediary.[38]
[36] Ibid at [44], 355.
[37] Ibid at [48], 356.
[38] Ibid at [51], 356.
In the Rokt decisions before the Commissioner, the delegate found that the substance lay in a scheme for advertising to a customer such that they are more inclined to positively interact with the advertisements.[39] The effect on the customer was measurable, however, this was found by the delegate to be human interaction or activity and not in the realm of patentable subject matter.[40] Rokt appealed that decision with Robertson J finding that the substance of the invention “was to introduce a dynamic context-based advertising system, introducing a distinction between an engagement offer, without a direct advertising benefit, and an advertisement designed to lead directly to the sale of the product.”[41] His honour added that this resulted in “an improvement in computer technology”. This case is presently the subject of an appeal. Further submissions in relation to this case were requested. In those submissions the applicant cited the following passage:
“In addition, known components had been integrated into a single system in an innovative and previously unknown way. The invention brought together some new elements and some known elements to form a working combination that had not previously been achieved and involved the use of computers in a way that was foreign to their normal use as at December 2012.
Taken in isolation, a database, a client-server architecture, the running of the Javascript program on a publisher’s website and the creation of a ranking engine to rank abstract data to achieve an ordered list were each known as at December 2012, but in combination, the distinction between engagement offers and general advertising, coupled with the algorithms making use of background data for personalisation and ranking was a new combination of new and previously existing components and a new use of computer technology.”[39] Rokt Pte Ltd [2016] APO 66 at [46]; Rokt Pte Ltd [2017] APO 34 at [30].
[40] Ibid.
[41] Rokt Pte Ltd v Commissioner of Patents [2018] FCA 1988 at [203].
With this in mind it is useful to look at the examiners objection.
The examiner’s objection
As noted above, the outstanding objection in the fifth report argues that the claims lack a manner of manufacture. In the fifth report the examiner has construed the substance of the invention to be:
“…the substance of the alleged invention lies in providing customized interactions experience to the customer and as such it is directed to a solution to a commercial/business challenge i.e. customized shopping experience. The alleged invention involves collecting information in the form of interaction and non-interaction data, analysing this information by predicting an intention of the customer based on the data and displaying certain results in the form of a customized interaction experience tailored to the customer. As such these concepts represent a method of organizing human activity. In addition, claims amount to nothing more than mere instructions to apply the exception using combination of generic computer components.”
After outlining the substance of the invention the examiner then states that the displaying of information of higher importance before information of lower importance is a common technique for conveying formation.
The examiner then addresses the response which distinguishes arguments by the applicant about CCOM,[42] stating that CCOM allowed for an analysis of data and presentation of a customized and improved user experience using the computer. However, in the current case the examiner stated that the computer works in the usual and expected way.
[42] CCOM v Jiejing 28 IPR 481; [1994] FCA 1168.
The examiner then turns to discuss Aristocrat and states that in that case a
“technical improvement to a gaming machine that renders it simpler to operate, as exemplified by a one touch implementation, the presently claimed arrangement method is simply an abstract idea that is put into a computer, which when implemented on a general purpose computer, might result in the convenient collection, analysis and display of useful customer-intention specific data but which does not improve any technical aspect of a general purpose computer.”
The examiner further states that the specification merely provides:
“an emphasized information most relevant to a particular customer as claimed does not improve the computer used in any manner.”
The examiner then concludes that the claims do not define subject matter suitable for a patent. I will now provide a summary of the applicant’s submissions.
The Applicant’s Submissions
The Applicant’s submissions disagree with the examiner. They state that the claims are not simply an abstract idea put into a computer and although the claims define the use of interaction data and non-interaction data, the claims are not concerned with the data per se. The Applicant notes that rules for analysing the data are not defined and the operation of the processor is to provide a customized interaction experience.
The applicant then states that:
“The claims define an interrelationship that provides an improvement in the function of the computer or similar device.”
The applicant states that this is done by:
“employing linkages across channels to enable passing of an interaction context can solve the problem of disjointed context among the different communication channels.”
The interaction data is then:
“amalgamated to improve the granularity of customer intention prediction.”
The linkages across channels which enables passing of an interaction context is said to:
“..solve the technical problem of disjointed context among the different communication channels.”
This is also able to detect the presence of a particular customer in a particular channel.
The applicant then states that the “ingenuity” of the invention lies in:
“employing linked channels to improve data capture, enable context passing, improve granularity of intention prediction, and improve channel selection for delivering customized content.”
The applicant then submits that the specification:
“expressly teaches that the invention provides an improvement in the computer or other device because the determination of non-interaction data in addition to the interaction data facilitates a fairly accurate intention prediction in a time-efficient manner.”
This is said to enhance the accuracy of personalization of website and customer service interactions and facilitates presenting different versions of the same website to different customers.
The Applicant then goes on to say that:
“At the very least, the claimed invention involves the practical application of the information that is generated.”
This is said to be akin to what was considered to be a manner of manufacture in CCOM.
The Applicant’s submission then disagrees with the examiner’s statement it was merely generic computer components and discusses the seminal cases in this area and states then that:
“It is therefore abundantly clear that particular subject matter does not suddenly cease to be the kind of thing which a patent might be granted simply because certain examples of that subject matter are no longer new and inventive. That would, of course, be absurd – as plainly apparent when the subject matter at issue is something so self-evidently patent-eligible as “a computer-implemented method”, “apparatus” and “a non-transitory computer-readable medium”.
The Applicant states that NRDC should be followed and nothing in Research Affiliates or RPL Central requires a different result because there is clearly an improvement in the function of the computer.
The applicant requested that this decision be deferred pending the outcome of an appeal from Encompass v InfoTrack.[43] The expanded bench of the Full Federal court issued its decision on 13 September 2019.[44] In that decision, the expanded bench did not find it necessary to revisit the correctness of Research Affiliates and RPL.[45]
[43] Encompass Pty Ltd v InfoTrack Pty Ltd [2018] FCA 421; see NSD734/2018.
[44] Encompass Pty Ltd v InfoTrack Pty Ltd [2019] FCAFC 161.
[45] Ibid at [7].
The Applicant provided further submissions following the Rokt decision. They stated that the Examiner extrapolated the substance of the invention too broadly and did not pay attention to the technical details of the invention before emphasizing the creation of linkages and interaction to give customized interaction experience.
The applicant stated that:
“The Court in Rokt also rejected the Commissioner’s argument that the invention solved only a business problem. It also solved a technical problem in that it needed to provide a single platform in which user engagement data could be coupled with transactional data and user context data to provide a personalized ranking of engagement offer and identifying what steps the software needed to execute in order to modify dynamically the website that the user was browsing while they were browsing it to, first, implement in the web browser or device the concept of the engagement offer, second, to implement in the computer system the necessary software for selecting engagement offers and advertisements for the given user based on the previous interactions with the system and the interactions of other similar users and, third, to have that system interact with the widget in the web browser in real time.”
The Applicant noted the similarities in Rokt to the present case before concluding that the claims involve novel and inventive techniques that improve the capabilities of the conventional systems and that the solution to the problem addressed by the current application can only occur in the digital realm and that it is more than a scheme or mere idea.
Consideration
The substance of the claims
Firstly, I note that “a claimed invention must be examined to ascertain whether it is in substance a scheme or plan or whether it can broadly be described as an improvement in computer technology” and “there must be more than an abstract idea: it must involve the creation of an artificial state of affairs where the computer is integral to the invention, rather than a mere tool in which the invention is performed.[46] In the current case the examiner construed the substance in terms of providing customized interaction experience to a customer through the steps of collecting and analysing data before providing a tailored interaction experience to the customer. The Applicant does not appear to have provided their construction of the substance, but instead focused on iterating and reiterating that a problem has been overcome and a useful result is provided. They state that employing linkages across channels solves the problem of disjointed context among the different channels and this improves the ability to make predictions about the customer. The linkages created appear to merely be linking a generic unique identifier, such as an IP address, with the data collected from that IP address. The linkage created is therefore associating the data with the customer. This is standard technology. The applicant further argued that the collation of the data and enhanced personalisation of websites results in a unique customer experience.
[46] RPL Central at 96.
In my view, the processor, memory and I/O module I have discussed above are clearly generic elements, and their connectivity via, for example a bus, as in Figure 1, was clearly a generic computer system at the priority date. I believe the examiner was stating substantially this in their reports. The substance must therefore lie in the combination of the steps in the claims as a whole. Indeed, this is similar to what was found in Rokt. The substance lies in the steps of the claims as a whole. This is being able to facilitate the capturing of interaction and non-interaction data across multiple channels and creating linkages associated with that customer across those channels. Then using the data collected to predict a customer’s intention and then being able to detect a particular customer and provide a customised interaction experience to that customer.
Is the substance patentable subject matter?
Is the contribution to the claimed invention technical in nature?
I do not see a technical contribution here. The collection of interaction and non-interaction data is, in my view, merely collecting data. The specification is agnostic about this as it merely states that it facilitated by a processor. It does not give any further information about how this data is collected other than stating that it occurs over multiple channels and involves both interaction and non-interaction data. The creation of linkages across multiple interaction channels involves collecting the interactions and non-interactions data, such as scroll and click data and linking it to an identifier, such as an IP address, and another identifier, such as a mobile phone identifier. This is simply linking the data collected with a customer, using standard technology, such as an IP address.[47] I do not consider it to be a technical contribution. Then using machine learning and statistical models is simply applying statistics to the data and then making a prediction using those models. Furthermore, detecting the customer through e.g. the system monitoring browsing activity, touch screen operations, phone or chat logs, etc. was clearly standard computer functionality at the relevant time and therefore no technical advance or technical contribution is apparent from this. The combination of these steps also does not provide a technical contribution, as evidenced by the lack of discussion in the specification beyond the mere mention of the concept.
[47] Specification at [0046].
The applicant states that at the very least it is the practical application of the information that is at stake. Indeed, the manipulation of the data provides a directed, customer specific advertisement but I do not see how this is technical in nature. The method of manipulation, the method of how the linkages are actually created and how the predictions are made is not disclosed in the specification. It is only the idea of doing this that is. The steps as a whole are an abstract idea using generic computer technology and the claims appear to me to be an abstract idea for a computer program where the program is not disclosed.[48]
[48] Encompass Pty Ltd v InfoTrack Pty Ltd [2019] FCAFC 161 at [94]-[113].
I do not consider the contribution of the claimed invention to be technical in nature.
Is the computer merely the intermediary, configured to carry out the method, but adding nothing to the substance of the idea?
I accept that the use of the computer is intrinsic to the method currently claimed. However, it is clear from the description of the apparatus, which I have outlined above, that the computer is merely intermediary and is configured to facilitate the method and nothing more.
Does the claimed invention merely require generic computer implementation?
On reading the description of the apparatus and the embodiments I do not see anything other than generic steps that are carried out on a computer. Indeed, collecting interaction and non-interaction data could require some technical endeavour and programming, however, in the current application all that is disclosed is that the collection of this data is facilitated by a processor. The same can be said of the creation of linkages across the interaction channels. The step of predicting appears to merely involve the use of statistical techniques and correlates an interaction vs a non-interaction to make the prediction about a customer. Detecting the presence of a customer is not disclosed but could just involve using the customer log in or profile on other platforms or even their IP address. This is not a technical contribution. The step of providing a customised interaction channel based on the previous steps also is merely disclosed as being done.
The applicant admits in their submissions that:
“Conspicuously, none of the claims purport to define the rules by which the data is analysed.”
I do not see that there can be a manner of new manufacture in a computer collecting and analysing data. Particularly when no information about how the data is analysed is given.
When viewed as a combination of the steps, all together, all that is provided is customisation which can include more prominently displaying an advertisement the system believes the customer will interact with. I cannot see how this does anything more than what is the generic use of a computer.
Does the invention result in an improvement in the functioning of the computer?
In answer to this question the applicant submitted that:
“The claims define an interrelationship that provides an improvement in the function of the computer or similar device.”
They submit that this occurs in two ways. Firstly, by employing linkages across channels to enable passing of an interaction context and this solves the problem of disjointed context among the different interaction channels. Indeed, providing context to an interaction would be required to predict customer intent but I do not see how this is an improvement in the functioning of the computer. Adding context to the interaction is simply adding additional data to the interaction. The prediction power of the program is improved but it is not an improvement in the computer.
The second way being that:
“the invention provides an improvement in the computer or other device because the determination of non-interaction data in addition to the interaction data facilitates a fairly accurate intention prediction in a time-efficient manner.” (their emphasis).
I understand that the collection of both interaction and non-interaction data would be more powerful at making predictions over just interaction data alone or non-interaction data alone. However, this appears to me to just be an improvement in the ability to make the predictions and an improvement in what advertisements are presented to the customer. This has no effect on the functioning of the computer itself. Furthermore, the specification stated that this could be done by conventional means[49] and collecting and analysing it is something I would expect a computer to be able to do faster. Collecting better data and analysing it in a standard computer in a standard way is merely collecting better data and this is not patent eligible subject matter.
[49] Specification at [0002].
The applicant also submitted that the ability to enhance the accuracy of personalisation of websites and/or customer service calls for different customers and enabling a unique customer experience is an improvement. Indeed this may be good for a business but it is not technical subject matter. The claims merely state that the predicted intention is displayed more prominently and a more prominent advertisement to me is not the same as the improvements the applicant is stating.
Does the claimed invention solve a technical problem in the functioning of the computer?
I note the Full Federal Court, reiterating the principles of Research Affiliates, stated that “One consideration is whether the invention solves a ‘technical’ problem within the computer or outside the computer, or whether it results in an improvement in the functioning of the computer, irrespective of the data being processed.”[50]
[50] Ibid at 99.
I note that the examiner stated that the current application solved only a business problem. The Applicant further elaborated on their position in view of the Rokt decision by stating that:
“Similar to the invention in Rokt, the present invention provides dynamically customized content for delivery to a user, and implements in the computer system the necessary software for capturing interaction and non-interaction data for the given user based on the previous interaction with the system. The capturing of the interaction and non-interaction data collected over multiple interaction channels can help achieve higher granularity of prediction of customer intention to help make faster recommendations to the customer in real-time.”
I consider the Applicant to be saying that the problem lies in the ability to make fast and accurate advertising recommendations to a customer. The solution lies in the capturing of interaction and non-interaction data and creating linkages and then making a prediction before detecting the customer and providing the customised advertisement. This solution to the problem is done by the software and this is clear in the applicant’s submission.
I therefore do not consider that the current claims involve a manner of manufacture.
Whether there may be patentable subject matter in the application
The current claims are directed to gathering data on a customer and making predictions about that customer before detecting the customer and providing a customised interaction experience. The customised interaction experience may simply be, as in the claims, more prominently displayed content. This can be tracking search terms and what the customer has or has not clicked and then display an advertisement based on the user’s history. I do not consider this to be a manner of manufacture.
The specification provides other embodiments which are not the subject of claims. I have not considered all of these embodiments or whether or not they may be a manner of manufacture. One embodiment is for receiving assistance or complaints and using a customer’s profile to facilitate a preferred mode of assistance, such as a phone call or chat. An example of this is given at [0055]-[0056]. In this example the customer may be seeking to pay a bill or may be requesting help with network connectivity issues. Looking at this example on one hand I do not see there to be a technical contribution where a customer is looking to pay their bill and the system brings up their bill information and predicts payment by credit card since they have payed with a credit card before [0057]. Looking at Figure 5, which goes with this embodiment it appears to be long-standing practice of standard menu prompting, used over the phone or online, by businesses and government entities where users go down a particular tree or query path. If the system merely remembers part of that path and prompts the user down the same path on the next interaction, I do not see this as an improvement in computer technology. I therefore cannot find any patentable subject matter in the specification.
Conclusion
I conclude that the claims are not a manner of manufacture. I refuse the application.
Keith Wagg
Delegate of the Commissioner of Patents
0