Accenture Global Services Limited
[2023] APO 10
•14 February 2023
IP AUSTRALIA
AUSTRALIAN PATENT OFFICE
Accenture Global Services Limited [2023] APO 10
Patent Application: 2019204134
Title:Future Order Throttling
Patent Applicant: Accenture Global Services Limited
Delegate: Dr V. Z. Kolev
Decision Date: 14 February 2023
Hearing Date: Written submissions filed on 16 February 2022
Catchwords: PATENTS – sections 45 and 49 – hearing with respect to examiner’s objection – manner of manufacture – managing user’s orders for food and beverage placed over the Internet – real time delivery of an ordered item – providing order suggestions to the user – determining and using intelligent queueing information in the fulfillment of food and beverage orders – business innovation – the claimed invention is not a manner of manufacture – no patentable subject matter described in the specification – application refused
Representation: Patent attorney for the applicant: Murray Trento & Associates Pty Ltd
IP AUSTRALIA
AUSTRALIAN PATENT OFFICE
Patent Application: 2019204134
Title: Future Order Throttling
Patent Applicant: Accenture Global Services Limited
Date of Decision: 14 February 2023
DECISION
The invention claimed in each one of the claims, as proposed to be amended, is not a manner of manufacture. Furthermore, based on the matter described in the body of the specification, I am of the opinion that no allowable amendment could result in claiming a patentable invention.
I refuse the application.
REASONS FOR DECISION
Throughout this decision, unless explicitly stated otherwise, any reference to the Act, or to a specific section or subsection, refers to the Patents Act 1990, and any reference to the Regulations, or to a specific regulation or subregulation, refers to the Patents Regulations 1991. In addition, any reference to the Commissioner refers to the Commissioner of Patents as per the Act.
BACKGROUND
The matter relates to patent application 2019204134 (the Application) in the name of Accenture Global Services Limited (the Applicant). The Application was filed on 13 June 2019 as a divisional application of 2016248018 (the Parent Application). The earliest claimed priority date is 16 April 2015.
It is worth noting that the Parent Application lapsed for failure to gain acceptance within the prescribed period following three examination reports all including manner of manufacture objections.
The request for examination with respect to the Application was filed on 31 July 2019. On 4 August 2020, the Applicant filed a proposed amendment (items 1 and 2) in anticipation of an examination report. In essence, the amendment was proposed in response to the third examination report with respect to the Parent Application.
The Application was subject to three examination reports as detailed below.
Examination report No. 1 was issued on 28 August 2020. The report contained the sole objection with respect to manner of manufacture. A response to the report was filed on 25 February 2021. No amendment was proposed at that time.
Examination report No. 2 was issued on 24 March 2021. In the report, the Examiner maintained the objection with respect to manner of manufacture. No other objections were raised. A response to the report was filed on 23 July 2021. No amendment was proposed at that time.
Examination report No. 3 (the Last Report) was issued on 20 August 2021. In the report, the Examiner again maintained the sole objection with respect to manner of manufacture.
On 27 August 2021, the Applicant requested a hearing, which was conducted by way of written submissions.
SUBMISSIONS
On 16 February 2022, the Applicant filed a document titled “Submission to Accompany Request for Hearing – Section 216(1) and Reg 22.22” (the Applicant’s Submissions or AS).
APPLICABLE LAW
On 15 April 2013, the Intellectual Property Laws Amendment (Raising the Bar) Act 2012 commenced which resulted in significant amendments to the Act and Regulations. The Application was filed on 13 June 2019; hence the amended provisions of the Act and Regulations apply to the examination of the Application and to the instant hearing decision. This means that I must accept the Application if I am satisfied, on the balance of probabilities, that the application complies with the Act. If I am not so satisfied, I may refuse the Application. In such a situation, the extended period for gaining acceptance provided under reg 13.4(1)(g) will make no difference if the Application is refused. However, I consider that it is only appropriate to refuse the Application if I am satisfied that providing the Applicant with an opportunity to overcome any negative findings would serve no useful purpose; in other words, if I consider that any potential negative findings are inevitably fatal to the Application.
The law on manner of manufacture
The relevant parts of s 18 stipulate:
“(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; and
…
(2) Human beings, and the biological processes for their generation, are not patentable inventions.”
A number of Court decisions have discussed and determined whether the particular invention in each case “is a manner of manufacture within the meaning of section 6 of the Statute of Monopolies”. These Court decisions constitute a significant body of case law that the Commissioner must follow. For the purpose of this decision, I do not consider it necessary to provide a comprehensive review of the case law and I will only point to Court decisions which I consider pertinent to the instant considerations.
National Research Development Corporation v Commissioner of Patents [1959] HCA 67; (1959) 102 CLR 252 (NRDC) is the seminal authority on the issue, establishing, inter alia, the general approach for deciding the question of manner of manufacture at [14] (at p 269):
“The right question is: ‘Is this a proper subject of letters patent according to the principles which have been developed for the application of s. 6 of the Statute of Monopolies?’”
D’Arcy v Myriad Genetics Inc [2015] HCA 35 (Myriad) is a much more recent High Court decision on manner of manufacture; however, I note that both NRDC and Myriad are not related to inventions implemented on computing devices, hence they do not discuss some of the more specific issues associated with such inventions. In contrast, the decisions of the Full Court of the Federal Court in Research Affiliates LLC v Commissioner of Patents [2014] FCAFC 150 (Research Affiliates) and Commissioner of Patents v RPL Central Pty Ltd [2015] FCAFC 177 (RPL Central) were made with respect to business methods implemented on computing devices. In particular, in RPL Central the Full Court, having considered in some detail the decisions in Research Affiliates and Myriad, developed an approach to determining the issue of manner of manufacture for inventions implemented using computers. This approach of RPL Central was later approved in Encompass Corporation Pty Ltd v InfoTrack Pty Ltd [2019] FCAFC 161 (Encompass), which was a decision by an enlarged bench (consisting of five judges) of the Full Court. The approach was also relied on in subsequent Full Court decisions, including Commissioner of Patents v Rokt Pte Ltd [2020] FCAFC 86 (Rokt) and Repipe Pty Ltd v Commissioner of Patents [2021] FCAFC 223 (Repipe). The cases in Encompass, Rokt, and Repipe also involved inventions implemented using computer technology.
Aristocrat Technologies Australia Pty Ltd v Commissioner of Patents [2022] HCA 29 is the most recent High Court decision on manner of manufacture. Because, in that decision, the six judges were evenly divided as to the outcome, there was no majority and no usual binding precedent. Importantly however, the outcomes of the above mentioned decisions of the Full Court were not criticised and remain undisturbed. Also, as a result of the operation of s 23(2)(a) of the Judiciary Act 1903, the decision of the Full Court of the Federal Court in Commissioner of Patents v Aristocrat Technologies Australia Pty Ltd [2021] FCAFC 202 (Aristocrat) that the invention concerned was not for a manner of manufacture was affirmed.
For the present purpose of deciding on manner of manufacture in relation to the Application, I consider it helpful to provide a brief overview of some of the main guiding principles that could be extracted from the above Court decisions. Below, I will present those principles, in italic, as separate paragraphs supported by relevant quotations from the decisions. Where the breadth of some quotations makes them relevant to more than one principle, for brevity, I will not repeat those quotations in different paragraphs (underlining added in all quotations).
A determination on manner of manufacture must be done on a case by case basis, having regard to the substance of the invention not merely the form of the claims; there are no strict rules or a precise formula to be applied mechanistically:
“The purpose of s. 6, it must be remembered, was to allow the use of the prerogative to encourage national development in a field which already, in 1623, was seen to be excitingly unpredictable. To attempt to place upon the idea the fetters of an exact verbal formula could never have been sound. It would be unsound to the point of folly to attempt to do so now, when science has made such advances that 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 broad sweep of the concept.” (NRDC at [15]; at p 271)
“This Court in NRDCdid not prescribe a well-defined pathway for the development of the concept of ‘manner of manufacture’ in its application to unimagined technologies with unimagined characteristics and implications. Rather, it authorised a case-by-case methodology.” (Myriad at [23])
“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.” (Myriad at [144], reasons by Gageler and Nettle JJ)
“The approach to be taken to deciding whether a claimed method or product is properly the subject of letters patent must be flexible and must allow for new technologies presently unknown … There is no formula to be mechanically applied …
… in examining whether a claimed invention is properly the subject of letters patent, it is necessary to look not only at the integers of that claimed invention but also at the substance of that invention.” (Research Affiliates at [116]-[117])
“The determination … is made not by some mechanistic application of the criterion of artificiality or physical effect, but by an understanding of the claimed invention itself. The invention is to be understood as a matter of substance and not merely as a matter of form.” (Research Affiliates at [106])
The characterisation as “an artificially created state of affairs of economic significance” is useful, but not ultimately determinative for manner of manufacture; to be patentable, a process must belong to the useful arts:
“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.” (NRDC at [22]; at p 275)
“… the view which we think is correct in the present case is that the method the subject of the relevant claims has as its end result an artificial effect falling squarely within the true concept of what must be produced by a process if it is to be held patentable … The effect produced by the appellant’s method exhibits the two essential qualities upon which ‘product’ and ‘vendible’ seem designed to insist. It is a ‘product’ because it consists in an artificially created state of affairs, discernible by observing over a period the growth of weeds and crops respectively on sown land on which the method has been put into practice. And the significance of the product is economic; for it provides a remarkable advantage, indeed to the lay mind a sensational advantage, for one of the most elemental activities by which man has served his material needs, the cultivation of the soil for the production of its fruits … It achieves a separate result, and the result possesses its own economic utility consisting in an important improvement in the conditions in which the crop is to grow, whereby it is afforded a better opportunity to flourish and yield a good harvest.” (NRDC at [25]; at p 277)
“If a process is to be patentable, it must offer some advantage which is material, in the sense that the process belongs to a useful art. The characterisation of patentability by reference only to the description in NRDC of a product which consists of an artificially created state of affairs of economic significance was part of the High Court’s reasoning but did not represent a sufficient or exhaustive statement of the circumstances in which a claimed invention is patentable.” (Research Affiliates at [101])
“In this context, their Honours emphasised [in Myriad] (at [20]) that, while satisfaction of an ‘artificially created state of affairs of economic significance’ as stated in NRDC may ‘suffice for a large number of cases in which there are no countervailing considerations’, this terminology is not to be treated as a formula exhaustive of the concept of manner of manufacture, or a formula which alone captures the breadth of the ideas to which effect must be given. Similarly, Gageler and Nettle JJ noted (at [125]) that the holding in NRDCdoes not mean that an ‘artificial state of affairs’ and ‘economic utility’ are the only relevant considerations in this context. However, the majority and Gageler and Nettle JJ acknowledged the usefulness of such characterisation in appropriate circumstances.” (RPL Central at [116])
In deciding on manner of manufacture, it is important to identify where the inventor’s ingenuity lies:
“It is a question of understanding what has been the work of, the output of, and the result of, human ingenuity, and to apply the principles that have been developed and explained so well in NRDC.” (Research Affiliates at [116])
“Recognising that the claims are to a method and system comprising a combination of integers, it is necessary to understand where the inventiveness or ingenuity is said to lie.” (RPL Central at [112])
Technological innovations are patentable, whereas business innovations are not; a business method implemented on computing devices could be patentable if it involves ingenuity in the computer implementation:
“Relevantly, the Full Court in Research Affiliates said (at [94]) that the distinction to be drawn was between the employment of an abstract idea or law of nature and the idea or law itself and that there is a distinction between a technological innovation which is patentable and a business innovation which is not. Their Honours repeated an observation from Grant (at [29]) ‘[a] product of a method is something in which a new and useful effect may be observed. For claimed computer programs, the courts looked to the application of the program to produce a practical and useful result, so that more than “intellectual information” was involved.’ A technological innovation is patentable; a business innovation is not, although a business method may be the subject of letters patent.” (RPL Central at [100])
“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. The basis for the analysis starts with the fact that a business method, or mere scheme, is not, per se, patentable. The fact that it is a scheme or business method does not exclude it from properly being the subject of letters patent, but it must be more than that. 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. Where the claimed invention is to a computerised business method, the invention must lie in that computerisation. It is not a patentable invention simply to ‘put’ a business method ‘into’ a computer to implement the business method using the computer for its well-known and understood functions.” (RPL Central at [96])
“RPL Central does not claim any invention or ingenuity in any program or operation of a computer, or implementation by a computer to operate the method. Accordingly, the ingenuity of the inventors must be in the steps of the method itself. The method does utilise the speed and processing power and ability of a computer but there is no suggestion that this is other than a standard operation of generic computers with generic software to implement a business method …
The problem may be one of confronting the ‘maze’ of available information concerning the RPL of different Units of Competency in different institutions, but the solution to that problem, to be patentable, must involve more than the utilisation of the well-known search and processing functions of a computer, for example an invention in the way in which the computer is utilised.” (RPL Central at [110]-[111])
“There is no suggestion in the specification or the claims that any part of the inventive step lies in the computer implementation. Rather, it is apparent that the scheme is merely implemented in a computer and a standard computer at that. It is no part of the claimed method that there is an improvement in what might broadly be called ‘computer technology’.” (Research Affiliates at [118])
“In Research Affiliates, looking at the claimed method as a matter of substance, the Full Court concluded that, in that case, the computer was merely the means by which the analyst accessed data to generate an index, that being the work of the analyst rather than a technical generation by the computer. There was no suggestion of the utilisation of an unusual technical effect. The inventors made changes to the computer program to cause the program to gather and process data and perform data manipulations and calculations, including macros to manipulate and refine data. Such use of algorithms was not ‘foreign’ to the normal use of computers.” (RPL Central at [102])
“To reiterate some of the matters discussed in Research Affiliates:
·It is necessary to ascertain whether the contribution to the claimed invention is technical in nature. In Aerotel Ltd v Telco Holdings Ltd; Macrossan’s Application [2007] 1 All ER 225, the subject matter was an interactive system whereby questions were asked, the answers incorporated in a draft and, depending on some particular answers, further questions were asked. It was held that, apart from the fact of running a computer program, there was nothing technical about the contribution and the method was for the business of advising upon and creating appropriate company documents.
·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.
·Does the claimed method merely require generic computer implementation?
·Is the computer merely the intermediary, configured to carry out the method using a computer readable medium containing program code for performing the method, but adding nothing to the substance of the idea? In Alice Corporation, the method was for exchanging financial obligations in which the computer was used to create records, track multiple transactions and issue simultaneous instructions. The majority in the Supreme Court of the United States concluded that the use of the computer added nothing to the substance of the abstract idea of reducing settlement risk in exchanging financial obligations.” (RPL Central at [99])
Whether a method can or cannot be practically implemented without a computer is not determinative for manner of manufacture:
“Simply putting a business method or scheme into a computer is not patentable unless there is an invention in the way in which the computer carries out the scheme or method. Is the fact that the scheme cannot practically be implemented without a computer, that is, that the computer is integral to the working of the scheme, sufficient to make it patentable? The answer is not straightforward because this is not a case where the computer simply processes the information entered by the user, for example by using an algorithm, or retrieves information from the Internet in response to a user’s question.” (RPL Central at [107])
“Is the mere implementation of an abstract idea in a well-known machine sufficient to render patentable subject matter? Is the artificial effect that arises, because information is stored in RAM and there is communication over the Internet or wifi, sufficient? Does any physical effect give rise to a manner of manufacture? Are the mere presence of an artificial effect and economic utility, without more, sufficient to determine manner of manufacture?
It is not a question of stating precise guidelines but of deciding, in each case, whether the claimed invention, as a matter of substance not form, is properly the subject of a patent.” (RPL Central at [97]-[98])
“It is stated in the specification, and was accepted by the primary Judge, that the method could not be carried out without the use of a computer. This alone cannot render the claimed invention patentable if it involves simply the speed of processing and the creation of information for which computers are routinely used. In those circumstances, the claimed invention is still to the business method itself. A computer-implemented business method can be patentable where the invention lies in the way in which the method is carried out in the computer. This necessitates some ingenuity in the way in which the computer is utilised (Research Affiliates).” (RPL Central at [104])
The case law on manner of manufacture was extensively discussed in prior decisions on the matter by the Australian Patent Office, including in Aristocrat Technologies Australia Pty Limited [2016] APO 49, where the Delegate provided a general indication, distilled from the case law, as to the matters relevant to a determination on manner of manufacture for inventions implemented on a computer:
“35. 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.” (underlining added)
It is clear from the Delegate’s wording that the above list is not a “check-list” to determine whether a particular claimed invention is a manner of manufacture. Instead, the list includes, in a non-exhaustive manner, relevant considerations or “touch stones” helpful in the decision process. This was also noted in Todd Martin [2017] APO 33:
“47. With this list of points, the delegate in the Aristocrat case was not intending to indicate a list of conditions, for computer-implemented cases, to be met to define a manner of manufacture. That is evident from the delegate’s statement that the list was not intended to be exhaustive. Moreover, it would appear improper to find there was a manner of manufacture simply on the basis that one or more points could be answered in favour. In the present case for example, it may be that at least the fifth dot-point, regarding whether the application of the method produces a practical and useful result, is satisfied. On the other hand, that consideration on its own would be insufficient in the present case. Conversely it would also appear improper to find there was no manner of manufacture simply on the basis that one or more points could not be answered favourably. Rather than these points being seen as conditions to be met, they should be seen as relevant matters to consider, as the delegate stated at [35]. The substance and contribution of the claimed invention in each case should be considered on its merits overall and various points under the law would appear to have varying degrees of relevance depending on the case.”
As a further observation, it appears to me that the Court decisions on manner of manufacture for computer-implemented inventions do not always explicitly refer to all of the above relevant considerations, which would appear to suggest that, depending on the circumstances of the case, not all of the relevant matters included in the list need to be considered in order to reach a conclusion. It could also be said that some of the above considerations are somewhat overlapping in their scope.
THE SPECIFICATION
The proposed amendments
While I cannot see any immediate reasons why the amendments would not be allowable, I do not need to decide this conclusively as this will not affect the outcome of my decision. Suffice to say that the amendments were not objected to by the Examiner and, for the benefit of the Applicant, I will consider the Specification as proposed to be amended by the amendment items up to and including item 2.
The invention as described
It is worth noting that the body of the Specification extends over 89 pages of description and 22 pages of drawings. It covers several embodiments, all somewhat related to making and fulfilling orders for items, thus having a lot of common features. Nonetheless the different embodiments possess somewhat different functional aspects which, in my view, warrant separate considerations.
The sections “Technical Field” and “Background of the Invention” are reproduced below in their entirety:
“TECHNICAL FIELD
[0002] This disclosure generally relates to a system architecture.
BACKGROUND OF THE INVENTION
[0003] System architectures may be used to manage orders. In some instances, system architectures may manage orders placed through the Internet.”
The next section “Summary of the Invention” consists entirely of consistory statements broadly corresponding to the claims. The section “Detailed Description of Embodiment(s) of the Invention” describes the invention by reference to the drawings, consisting of Figures 1 to 16, and I will discuss the content of this section below.
Managing user’s orders for items
The beginning of the section provides a brief but informative general overview of this embodiment of the invention:
“[0033] A system may be used to manage orders for items. For example, a system may enable a user to use an application on a mobile device to order coffee from a coffee shop to be ready for pick up when the user arrives at the coffee shop. A server may receive the order from the mobile device and determine whether the coffee shop can fulfill the order. In response to determining that the coffee shop cannot fulfill the order, the server may provide the mobile device an indication that the coffee shop cannot fulfill the order, and may also provide an alternate suggestion to the user. By determining whether the orders may be fulfilled by particular times and providing alternate suggestions, the system may enable users to avoid waiting for orders that would not be able to be fulfilled by particular fulfillment times and enable users to place alternate orders.” (underlining and italic added)
An example system 100 is illustrated on Figure 1, reproduced below, where “the system 100 may include a user device 110, a server 120, a historical information database 122, a suggestion rule database 124, a current order database 126, and fulfillment center workstations 130, 140” (at [0034], italic added). In the context of the Specification, it is clear that the phrase “fulfillment center” is used as a general term for a place (e.g., a commercial establishment) where the order for the item is to be fulfilled, i.e., “by enabling an employee at the fulfillment center to prepare the item for the user” (at [0047]). Similarly, it is also clear that the phrase “fulfillment times” refers to the times when the respective orders must be ready so that, e.g., the ordered items can be collected by the user. For brevity, when referring to fulfilment centres, I will use the abbreviations FC and FCs, and when referring to fulfillment times, I will use the abbreviations FT and FTs. I will use these abbreviations throughout the decision, including in the quotations. It is worth observing that, in the context of the coffee example, the FCs could be any places where coffee drinks can be made and sold commercially, e.g., coffee shops or similar premises, and the FT is the time the user is expected to attend the coffee shop or similar to pick up the ordered coffee or, if delivery is requested, the time the ordered coffee is to be delivered.
The FC workstations 130 and 140 are the computer workstations used by the corresponding FCs. It is explained that “[t]he [FC] workstations 130, 140 may be located on the premises of the [FC] and used by employees of the [FC]” (at [0087]). Importantly, “[t]he [FC] workstations 130, 140 may receive orders from the server 120 and provide performance information to the server 120” (at [0086]). The workstations also “may provide information to employees of the [FC] to fulfill orders” (at [0088]), and “may obtain the information to provide employees of the [FC] from the orders received from the server 120”, which “may include data that indicates an order number, a type of coffee ordered, a customer name for the order, a place of delivery for the order, and a time of delivery for the order” (at [0089], underlining added). It is also mentioned, in the same paragraph, that the workstations “may prioritize the fulfillment of orders”, which for example, can be “based on when the orders are to be provided to the users”.
It is further explained that “[t]he user device 110 maybe a computing device used by a user 112”, for example, “the user device 110 may be a smart phone, a tablet computer, a laptop computer, a desktop computer, or another type of computing device” (at [0035]). The user device 110 provides a user interface allowing the user 112 to communicate (via the user device 110) with the server 120 to order items and receive server’s responses 114 (at [0035]). The user interface may be a graphical or speech interface (at [0036]). When placing an order, the user may specify the item(s) subject of the order, the particular FC (e.g., FC A), and the FT. Alternatively, instead of including the FT, “the order may indicate [FC] A and a current location of the user, and the server 120 may determine a [FT] corresponding to when the user 112 is estimated to arrive at [FC] A based on the current location of the user” (at [0037]). In such case, the order will also include “an indication that the user is traveling to [FC] A to pick up” the item(s) (at [00107]). In another alternative, “the order may indicate a [FT] and a current location of the user, and the server 120 may determine that the user 112 may reach [FC] A along the user’s expected route by the [FT] based on the current location of the user” (at [0038]). It is also possible that the user places “an order that indicates coffee, a current location of the user, and a destination of the user, and the server 120 determines [FCs] accessible along the route of the user and the times that the user will pass by the [FCs]” (at [00116]), presumably estimating that these times would be the FTs for the respective FCs along the route. In addition:
“[0038] … the order may indicate that the user 112 would like coffee when the user 112 arrives at the user’s office and a current location of the user 112, and the server 120 may determine a [FT] based on when the user 112 is estimated to arrive at the office based on the current location of the user 112 and determine a [FC] based on a distance of the [FC] from the office of the user 112.”
After sending the order, the user receives (via the user device) a response from the server, the response indicating if the order can be fulfilled successfully, and optionally including one or more alternate suggestions (at [0039]-[0042]). Example responses, as they would appear on the user interface of a user device, are shown on Figures 2A and 2B, reproduced below.
Figure 2A shows that, because the user’s order cannot be fulfilled successfully (see item 220), the user is presented with a list of three alternate suggestions (see items 230, 232, and 234) for selection. The user also has the option to cancel the order (see item 236) if none of the alternate suggestions is acceptable. Figure 2B illustrates a situation where the user’s order can be fulfilled successfully (see item 260), however a list of three alternate suggestions (see items 270, 272, and 274) is nonetheless presented to the user, the suggestions representing special offers that “may result in a more valuable outcome” (at [00110], underlining added). The user still has the option to ignore the alternate suggestions by proceeding with the original order (see item 276). It is contemplated that “the interface 210 [and, most likely, also 250] may color code the multiple alternate suggestions by the type of alternate, e.g., suggestions for alternate items may be outlined in orange and suggestions for alternate times may be outlined in green, or may bold or italicize the portion of the alternate suggestion that is alternate, e.g., tea, [FC] B, and 9:10 AM may be bolded” (at [0091]).
In order to perform the above functionality, “[t]he server 120 may track performance of [FCs] in fulfilling orders over time, and store historical preparation information in the historical information database 122 that describes the historical performance” (at [0044], underlining added). The information is collected over a given time period (e.g., a week, a month, half a year), and indicates the production rate of the individual FCs, e.g., “on average … ten cups of coffee every ten minutes”, “in the morning … twelves cups of tea every ten minutes and in the afternoon … eight cups of tea every ten minutes”, “whenever employee A is producing coffee, employee A is able to produce fifteen cups of coffee every ten minutes, and whenever employee B is producing coffee, employee B is able to produce five cups of coffee every ten minutes” (at [0044]).
In addition, “[t]he server 120 may track user orders and responses to alternate suggestions over time and store, in the historical information database 122, historical user information that indicates a likelihood that a user will accept an alternate suggestion” (at [0045], underlining added). This includes tracking the types of items the user orders and thus storing “information that indicates alternate items that the user 112 may be likely to desire”, tracking the FCs where the user places orders and thus storing “information that indicates alternate [FCs] that the user 112 may accept”, tracking the acceptance or rejection by the user of alternate suggestions and thus storing “information that indicates the types of alternate suggestions that the user 112 has accepted or rejected, and amounts of discounts at which the user 112 has accepted or rejected alternate suggestions for different types of alternate suggestions” (at [0045]).
Alongside the historical information about the FCs and the users, “[t]he server 120 may track current orders and store current order information in the current order database 126” (at [0046], underlining added). The current order information is, in essence, an indication of the current workload of the individual FCs, which could impact the ability of the individual FCs to successfully fulfill a particular order having a particular FT:
“[0046] … The current order information may indicate current orders that are to be fulfilled by [FCs]. The current order information may indicate particular orders, where for each order, the current order information indicates one or more particular items, a quantity for each particular item, a [FC] to fulfill the order, and a [FT] for fulfilling the order.”
Determining whether the order can be fulfilled successfully
Importantly, “[t]he server 120 may determine whether the [FC] can fulfill the order by the [FT] based at least on current order information and a portion of the stored historical preparation information for the [FC]” (at [0049], underlining added). Several examples of how this information is used for the determination are provided:
“[0049] … For example, the server 120 may determine that an order for coffee at 9 AM by [FC] A can be fulfilled based on current order information that indicates that only nine cups of coffee have been ordered for 9 AM and a portion of stored historical preparation information for [FC] A that indicates that [FC] A can produce ten cups of coffee at 9 AM. In another example, the server 120 may determine that an order for coffee at 9 AM by [FC] A cannot be fulfilled based on current order information that indicates that ten cups of coffee have been ordered for 9 AM and a portion of stored historical preparation information for [FC] A that indicates that [FC] A can produce ten cups of coffee at 9 AM. In yet another example, the server 120 may determine that an order for coffee at 9 AM for [FC] A cannot be fulfilled based on current order information that indicates that seven cups of coffee and two cups of espresso have been ordered for 9 AM and a portion of stored historical preparation information for [FC] A that indicates that [FC] A can only produce a combined total of nine cups for coffee and espresso at 9 AM.”
A large number of additional examples (some a bit more general than the above) are provided, illustrating how the server:
·“may determine whether the [FC] can fulfill the order by the [FT] based at least on determining that a demand for the item indicated by the current order information is not less than a production rate estimate for the item” (at [0050]), wherein “[t]he server 120 may determine the demand for the item based on determining a quantity of the item ordered from the [FC] for a particular time” (at [0051]);
·“may determine a production rate estimate for an item based on a portion of the stored historical preparation information for the [FC]” (at [0052]), which could also involve considerations such as the day of the week and the time of the day (at [00108]) as well as whether and when “employee A is working” (at [0052]);
·“may obtain current order information that describes other orders to be fulfilled at the [FC] based on identifying orders for items at the [FT] whose fulfillment delays the fulfillment of the order for the item”, e.g., “for each cup of tea that a [FC] produces, the fulfillment of a cup of coffee is delayed”, because “[t]he server 120 may store information indicating these associations between items whose fulfillment causes a delay in the other and an amount of the delay the items cause on the other items”, thus “the server 120 may determine the other types of items that may delay the fulfillment of the particular item based on the stored associations” (at [0053]);
·“may determine whether the [FC] can fulfill the order by the [FT] based at least on a contingency amount” (at [0055]), wherein:
o“[a] contingency amount may be a buffer for contingencies in fulfilling orders” which may be reflective of “mistakes in fulfilling an order” (at [0056]), and
o“[t]he contingency amount may be preset by an administrator or dynamically determined by the server 120 based on historical preparation information stored in the historical information database 122”, e.g., “the server 120 may determine that the historical preparation information indicates that out of the past week, one out of every ten cups of coffee had a mistake, and in response, determine to set a contingency amount of one cup per every ten cups of coffee” (at [0056]);
·“may determine whether the [FC] can fulfill the order by the [FT] based at least on inventory of the [FC]” (at [0057]) and additionally this may also be “based on scheduled shipments to the [FC]” (at [0058]) and “based on an estimated preparation time for handling shipments received by the [FC]” (at [0059]);
·“may update current order information stored in the current order database 126 based on monitoring estimated time of arrivals of users”, e.g., “the server 120 may determine that an order of coffee is originally scheduled so that the coffee is ready at 9:00 AM for a user, but the location of the user’s device indicates that the user 112 is traveling slower than expected and will likely not arrive until 9:10”, in which case “the server 120 may determine that the coffee should instead be picked up at 9:10 AM and that now only nine cups of coffee have been scheduled for pick up at 9:00 AM” and “may schedule the future slot, e.g., 9:10AM, for the order before releasing the existing slot, e.g., 9:00 AM” thus ensuring “that the order always has a slot in which to be produced and delivered” (at [0060]).
With respect to the user’s estimated arrival time, it may be determined, e.g., that “based on historical information for the user 112 stored in the historical information database 122, the user 112 typically takes twenty minutes to get to the user’s office” (at [0062]). Alternatively, it may be determined that “the next subway train to the user’s office is delayed so that it arrives in thirty minutes and that based on current calculated transit times, the user 112 likely won’t get to work until forty minutes” (at [0062]). More generally:
“[0063] The server 120 may calculate an estimated time of arrival of a user given a location based on estimated transit times. The server 120 may estimate transit times based on determining the estimated path the user 112 will take to get to the user’s destination, and the estimated time it will take for the user 112 to reach the user’s destination using the estimated path. For example, the server 120 may determine that the user 112 is traveling by foot, and from the current location the user 112 is likely to take the path to the destination that results in the least distance traveled by foot, and calculate the estimated time for someone walking at the user’s pace to travel the distance for the path. In another example, the server 120 may determine that the user 112 is traveling by foot, and from the current location to the destination the user 112 is likely to take the path that the user 112 typically takes when traveling by foot from the current location to the user’s destination, and calculate the estimated time for someone walking at the user’s current walking pace to travel the distance for the path. In yet another example, the server 120 may determine that the user 112 typically takes an amount of time to the destination, and therefore use that as the estimated time, rather than a typical time for any person.” (underlining added)
Upon completion, by the server, of the determination whether the user’s order can be fulfilled successfully, the user is notified accordingly (see, e.g., Figures 2A and 2B). If the order cannot be fulfilled, the user may also be notified of the reasons (at [0064]). In addition, even before receiving any orders, the server may prevent the user from placing orders that cannot be successfully fulfilled by indicating to the user device that the user is to be prevented from placing the orders in question, e.g., by disabling the corresponding options in the user interface (at [0065]).
Providing alternate suggestions
Providing alternate suggestions to the user in response to the user’s order may happen:
·“in response to determining that an order cannot be fulfilled”, e.g., “in response to receiving an order for coffee at 9 AM from [FC] A, the server 120 may provide the notification” (at [0066]):
o“You’re estimated to arrive at [FC] A at 9:00 AM, but coffee is not available from [FC] A until 9:10 AM. Would you like to order coffee for 9:10 AM?”, or
o“You’re estimated to arrive at [FC] A at 9:00 AM but coffee is not available until 9:20 AM. Would you like to instead order tea for 9:00 AM?”;
·“in response to determining that an order cannot be fulfilled before the user 112 attempts to place an order”; e.g., “when a user requests to view available items for order at 9 AM from [FC] A, the server 120 may provide a notification for the user device 110 to display next to the item, ‘This item is sold out by [FC] A, but is available from [FC] B. Would you like to order for pickup at [FC] B?’” (at [0066]);
·“even if an order can be fulfilled”; e.g., “the server 120 may determine that providing an alternate suggestion is likely to result in a better business value for an entity fulfilling the order or managing the server 120”, more particularly, “the server 120 may determine that the user 112 may agree to an alternate suggestion for an alternate item with a one-time discount, and that if the user 112 continues to order the alternate item in the future instead of the original item, it will result in a greater profit for the entity” (at [0067], underlining added).
The alternate suggestion can include “at least one of an alternate item, an alternate [FC], or an alternate time”, and this is done “based on the stored historical user information that indicates a likelihood that the user 112 will accept the alternate suggestion” (at [0068]). For example:
“[0068] … the server 120 may determine to identify tea as an alternate item to coffee based on the stored historical user information that indicates a high likelihood that the user 112 will accept tea instead of coffee, identify [FC] B as an alternate [FC] to [FC] A based on the stored historical user information that indicates a high likelihood that the user 112 will accept coffee from [FC] B instead of [FC] A, or identify 9:10 AM as an alternate time to 9:00 AM based on the stored historical user information that indicates a high likelihood that the user 112 will accept the alternate time of 9:10 AM instead of 9:00 AM.” (underlining added)
Importantly:
“[0069] In providing alternate suggestions, the server 120 may obtain one or more suggestion rules from the suggestion rule database 124. For example, the suggestion rules may specify particular ways of identifying alternate items, alternate [FCs], or alternate times, as described below.” (underlining added)
Identifying the alternate item on the basis of the historical information includes considerations such as (at [0070]-[0072]): (i) the frequency of the user ordering the alternate item; (ii) the frequency of the user ordering the alternate item from a particular FC; (iii) the frequency of other users, who have ordered the original item, also ordering the alternate item; (iv) the frequency of the user or other users accepting previous alternate suggestions for the alternate item as a replacement for the original item; (v) whether the user has ordered previously the alternate item at a similar time of day; and (vi) the similarity between the alternate and the original items (e.g., tea as an alternative to coffee), where the similarity is explicitly defined in available reference data.
Identifying the alternate FC on the basis of the historical information includes considerations such as (at [0073]-[0075]): (i) the frequency of the user ordering from the alternate FC; (ii) the frequency of the user ordering the item from the alternate FC; (iii) the frequency of the user accepting previous suggestions for the alternate FC instead of the original FC; (iv) the alternate FC (able to fulfill the order) being in close proximity to the original FC (unable to fulfill the order); (v) the alternate FC being able to provide an item that is similar to the ordered item (that the original FC is unable to provide), the similarity being determined based on accessible information describing the items in identical way (e.g., both items are titled “coffee”), or based on accessible information explicitly identifying that they are similar, or based on the assumption that at FCs from the same provider (e.g., a chain or company) respective items with similar names are similar. Paragraphs [0076]-[0077] also explain that the server may consider whether the alternate FC is located on the way between the user’s current location and the user’s final destination. This is done by specifically taking into account the location of the access to the alternate FC, including its altitude, so that, e.g., FCs located above the underground transport route of the user are not suggested, but a FC located at the stations, the user will pass through on foot, may be suggested.
Identifying the alternate time is done by determining the earliest time when the order can be fulfilled by the FC, based on the current order information and the historical performance information (at [0078]). Additionally, it can be considered whether such an alternate time satisfies a time threshold, meaning whether it is less than a certain time period (e.g., 15 or 30 minutes) from the original FT (at [0079]).
Importantly, the alternate suggestions can include some incentives (e.g., discounts), and this is determined by using the historical user information to evaluate the likelihood that the user will accept an alternate suggestion with a particular incentive, and whether the increase in this likelihood through a better incentive will offset the cost of the incentive (at [0080]-[0081]).
It is possible that the user is provided with multiple alternate suggestions (see, e.g., Figures 2A and 2B). The determination of which alternate suggestions to be included is “based on selecting a predetermined number of candidate alternate suggestions as the multiple alternate suggestions” (at [0083]). Selecting the candidate alternate suggestions is “based on outcome scores of each candidate alternate suggestion that indicate an estimated value of the candidate alternate suggestion”, the outcome score depending on the likelihood of the user accepting the alternate suggestion and the profit benefit in case the suggestion is accepted (at [0084], underlining added).
Where alternate suggestions are generated by the server and presented to the user (via the user device), the server may also place a hold on the potential orders reflecting the alternate suggestions for a short period of time (e.g., 30 seconds), during which time the user is expected to respond to the alternate suggestion(s). In such case, if “the alternate suggestion is accepted, the server 120 may confirm the hold so that the order is fulfilled” or if “the alternate suggestion is not accepted or the hold time elapses before a response is received from the user device 110, the server 120 may cancel the hold” (at [0085]).
Interaction process diagrams and flowcharts
Figure 4, reproduced below, is “an interaction diagram 400 of an example interaction of sharing information” (at [00102]). On the basis of the discussion of the invention thus far, the diagram of Figure 4 appears self-explanatory. I note that the diagram is somewhat simplified as only one FC is illustrated, however “multiple [FCs] may provide the server 120 information regarding what employees are working, the inventory of items available at the [FCs], the orders placed at the [FCs], and when orders are fulfilled at the [FC]” (at [00103]). It is also not unreasonable to assume that the system would have more than just one user having a user device.
The diagram of Figure 4 is explained in paragraphs [00102]-[00112], however no further important details are provided beyond what I already discussed and what can be derived from Figure 4 itself. Figure 3 is very similar to Figure 4, however Figure 3 represents the simpler case where the server only determines whether the order can be fulfilled successfully and notifies the user. As such, Figure 3 is missing the items corresponding to items 406 and 408 of Figure 4 (as they are not necessary if the server will not attempt to provide alternate suggestions), and instead of items 418, 420, and 422 of Figure 4, the diagram of Figure 3 includes a block with a wording “Determine order can not be fulfilled” followed by an arrow from the server to the user device with a wording “Provide indication order cannot be fulfilled”. Given all this, I do not consider it necessary to reproduce Figure 3. The explanations of Figure 3, provided in paragraphs [0093]-[00101], also do not appear to offer any significant information not already mentioned so far. I note that Figure 3 is explained on the basis of an example of “an order for a small cheese pizza for pickup at 12 PM at [FC] B” (at [0096]), whereas the explanations of Figure 4 are based on an example of “an order for a cup of coffee for pickup at 9 AM at [FC] A” (at [00106]).
Figure 6, reproduced below, is “a flowchart of an example process 600 for managing orders” (at [00120]).
The flowchart of Figure 6 appears to represent the process from the point of view of the functionality performed by the server. In addition, the flowchart seems closely related to the diagram of Figure 4 and equally self-explanatory. Figure 6 is explained in paragraphs [00120]-[00129] on the basis on an example where the user is placing “an order for a grilled cheese sandwich to be fulfilled by [FC] B for 11 AM” (at [00123]), wherein previously “the user has accepted an alternate suggestion of a cheeseburger instead of a grilled cheese sandwich, and has rejected alternate suggestions of jam and toast instead of a grilled cheese sandwich” (at [00121]). In the context of the example, it is explained that “the server 120 may determine that the order for a grilled cheese sandwich to be fulfilled by [FC] B for 11 AM can be fulfilled, but the user is likely to accept an alternate suggestion of a later fulfillment time of 11:30 AM, that otherwise another user would not be able to order a grilled cheese sandwich for 11 AM, that another user is likely to order a grilled cheese sandwich for 11 AM, and that the other user is not likely to accept an alternate suggestion” (at [00126]). The rest of the explanation of Figure 6 follows the logic that I have already discussed. Figure 5 is very similar to Figure 6 and appears closely related to the diagram of Figure 3 (not reproduced). As such, I do not consider it necessary to reproduce Figure 5 or to further comment on it, as no further substantial information appears to be provided in the explanations of this figure in paragraphs [00113]-[00119].
Real time delivery of an item
Figure 15, reproduced below, represents “a block diagram of an example system 1500” providing “for real time delivery of an item” (at [00247]). This appears to be a broader (in terms of functionality) embodiment, somewhat based on the above described embodiment of managing user’s orders for items.
It is explained that:
“[00247] … Real time delivery may include point-to-point delivery of small, tangible, purchased goods within a very short period of time of purchase, e.g., few minutes to a few hours. Purchased goods may include typical packaged goods that do not otherwise require real-time delivery, e.g., consumer electronics or office supplies, goods that degrade over a long period of time, e.g., groceries or flowers, or goods that degrade within a very short period of time, e.g., dry ice, ice cream, hot pizza or a cup of coffee.”
The blocks in the diagram of Figure 15 illustrate the following functionality (at [00248]-[00262] and [00269]-[00273]):
·Location determinator 1502 (for example, may be included in user device 110 of Figure 1): (i) determines location information for a customer based on one or more of a service set identifier (SSID) of a nearby detected wireless network, a detected phone mast signal, determined global positioning system (GPS) information, an assigned Internet Protocol (IP) address, a landline location, or a wireless media access control (MAC) address; and (ii) provides this information to other modules as shown by the arrows.
·The blocks: (i) smart appliances 1510 (e.g., a smart TV); (ii) mobile application 1512 running on a mobile device such as a smart phone, a tablet computer, or some other type of computing device that may be portably used (e.g., may be an application installed on user device 110 of Figure 1); (iii) web application 1514 (e.g., a Java application rendered by a web browser, for example, may be accessed by the web browser on user device 110 of Figure 1); and (iv) text or SMS application 1516 running on a mobile device (e.g., user device 110 of Figure 1); represent different modules, each one enabling the customer to place an order to ordering backend 1520.
·Voice interface 1518 (e.g., may be a telephone and, for example, may be included in user device 110 of Figure 1) enables the customer to communicate the order verbally to call centre workstations 1522 or to local voice-based order taking component 1532, which is part of local FC workstation 1530.
·Call centre workstations 1522: (i) generate orders based on the customer voice input; and (ii) provide the orders to ordering backend 1520. This can be done either manually (i.e., by customer service representatives) or by utilising speech recognition (e.g., through executing an Artificial Intelligence customer service agent program that may verbally speak to the customer to take the order, and place the order directly for the customer).
·Ordering backend 1520 (e.g., may be server 120 of Figure 1) processes orders from customers, including: (i) determining one or more local FC workstations 1530 to receive the order (based on the location which the customer would like to obtain the item ordered, or the ability of the local FC to fulfill the order); (ii) providing the order to local FC workstations 1530; and (iii) processing payments for the orders. Includes bulk order processor 1524 to perform mass processing of orders and bulk order router 1526 to perform mass management of logistics, including delivery scheduling and collection scheduling of received orders, which may include determining an order preparation schedule for each local FC workstation.
·Local FC workstations 1530 (e.g., may be located on the premises of the local FCs and used by agents/employees of the local FCs, for example, may be FC workstations 130, 140 of Figure 1): (i) receive orders from ordering backend 1520; (ii) provide information necessary to fulfill orders to agents/employees of the respective local FC; (iii) enable deliverers to determine where to deliver or a delivery route (which may be dynamically planned based on types of orders and locations to which the orders will be delivered); and (iv) prioritise the fulfillment of orders based on when the orders are to be provided to the customers. Include local, voice-based order taking component 1532, which: (v) enables customers to place orders directly with the local FC; (vi) may be a telephone-based system with which an employee of the local FC may speak to the customer; and (vii) may use speech recognition to generate orders for customers.
·Supply chain or finance or enterprise component of a third party 1540 may be used by local FC workstations 1530 for, e.g.: (i) automatically ordering materials or ingredients necessary for fulfilment of customer orders; and (ii) placing payment charges for customer orders.
Paragraphs [00263]-[00268] provide some discussion with respect to the way, in which ordering backend 1520 performs its functions. I will comment on the content of these paragraphs later in this decision when discussing the implementation of the embodiments of the instant invention.
Providing order suggestions to mobile computing devices
This appears to be a separate embodiment, which is described primarily with reference to Figures 7A and 7B, reproduced below.
Reference numbers without easily identifiable denotation refer to the following (at [00132], [00143], and [00150]): 702 – a mobile computing device; 736 – a user interface of the mobile computing device; 704 – a computer system; 706 – an example map; 708 – the current location of the mobile computing device on the map; 710, 710a, 710b – the movement route of the mobile computing device; 710b – the intended second portion of the route; 712a-f – blocks on the map; 714a-d – providers (e.g., restaurants, coffee shops, fast food chains, retailers); 726 – a table showing example results from a determination of possible candidate orders from providers; 750 – the provider computer system of provider 714a; A-Q – example steps performed by different devices, according to the corresponding description on the figures, in the alphabetical order as indicated by the thick arrows.
The example steps A-Q are performed as follows (at [00133]-[00152]):
A – Performed by mobile computing device 702 or by a data or cellular network provider.
B – Performed by mobile computing device 702. Performed periodically (e.g., every minute, every 5 minutes, every 15 minutes, whenever the location changes by more than a threshold amount) as part of a background process/service.
C – Performed by computer system 704. Accessed from local data repository 722 or external third party sources (e.g., records for customer loyalty programs, credit card records, etc.). Used to determine behaviour patterns and preferences for the user of mobile computing device 702.
D – Performed by computer system 704. Based on data from a repository of provider information, which can include location information for the providers (for mobile providers, updated dynamically based on data feeds). Absolute distances or distances along roads are calculated to determine the proximity to location 708 or route 710a-b of mobile computing device 702. Information on historical routes of the user and/or the mobile computing device (the information maintained by the computer system, the mobile computing device, and/or third party services) can be used to predict intended second portion 710b of the route. In the example, providers 714a-b are identified as being nearby and designated as candidate providers.
E – Performed by computer system 704. Including the items that are offered by providers 714a-d that the user may be interested in ordering. Based on the historical order information and factors like user location 708, time of day, user route 710a-b, provider preference, item preference, weather, etc., which are used to determine confidence values for each of the candidate orders (each confidence value corresponding to the likelihood of the user accepting the order) as illustrated in table 726 of Figure 7A. Candidate orders can include multiple items or no particular items (apparently, in the latter case, the user is presented with the simpler suggestion to visit the provider).
F – Performed by computer system 704. Based, at least in part, on the confidence values (e.g., the candidate order with the highest confidence value being selected).
G – Performed by computer system 704. Including information identifying provider 714a (it would appear that the text “Provider 112A” at item 738b on Figure 7A should read “Provider 714A”) and the food item, i.e., coffee. The notification can be a push notification, a text message, an email message, a social network message, a social network post, a voice message, a video message, and/or other appropriate message. Items are not limited to food and/or beverage only. Timing of the notification can be based on the estimated time for the provider to prepare the items so that they are available to the user when he/she arrives at the provider, the distance between current location 708 and the provider, and/or factors that may affect the user’s arrival at the provider (e.g., traffic, inclement weather, available parking, transit schedules and delays).
H – Performed by mobile computing device 702. Done in a variety of appropriate ways, such as visually/graphically on a display of the mobile computing device and/or audibly through speakers accessible to the mobile computing device. Accompanied by “selectable features 740a-c” (at [00148]) for the user to respond.
I – Performed by mobile computing device 702. In the depicted example, the user has selected feature 740a to accept the order suggestion and place the suggested order.
J – Performed by mobile computing device 702. The order request can specify suggested provider 714a and/or the suggested item, however the user can modify the suggested order using interface 736 (see Figure 7A), e.g., by changing the suggested item from coffee to tea.
K – Performed by computer system 704. Can include processing payment information for the order.
L – Performed by computer system 704.
M – Performed by provider computer system 750. This computer system can manage a variety of information for provider 714a, e.g., related to order processing, inventory management, staffing, payment processing, point of sale terminals, and/or other appropriate information.
N – Performed by provider computer system 750. The status updates on the order can be provided periodically, e.g., every 90 seconds, every minute, and/or every time the fulfilment process progresses to a new stage of fulfillment (e.g., building pizza, putting pizza in oven, baking, ready for pickup).
O – Performed by computer system 704. Stored in historical order data repository 722, after receiving the acknowledgement and status information.
P – Performed by computer system 704.
Q – Performed by mobile computing device 702. Also displayed are “selectable features 766a-b” (at [00152]) for the user to cancel the order and/or to further modify the order.
Figures 9A-B, reproduced above, represent the two portions of a flowchart of “an example technique 900 for providing order suggestions to mobile computing devices”, wherein “[t]he example technique 900 can be performed by any of a variety of appropriate computer systems and/or computing devices, such as the computer system 704” (at [00166]). While in the context of Figures 7A-B, the flowchart seems to represent the actions which are generally performed by computer system 704, in the same paragraph, it is also stated that “[i]n some implementations, the example technique 900 may additionally be performed locally by a mobile computing device, such as the mobile computing devices 702”.
Figure 10, also reproduced above, represents “a flowchart of an example technique 1000 for receiving and processing order suggestions on a mobile computing device”, wherein “[t]he example technique 1000 can be performed by any of a variety of appropriate mobile computing devices, such as the mobile computing device 702”.
It should be noted that, when reproducing Figures 9A-B, I have omitted the labels “900” and the arrows pointing from these labels to the actual flowcharts. Similarly, when reproducing Figure 10, I have omitted the label “1000” and the arrow pointing from this label to the actual flowchart.
In light of the above explanations of the process with reference to Figures 7A-B, I consider the flowcharts of Figures 9A-B and 10 to be somewhat self-explanatory. Nonetheless, it is perhaps worth noting that:
·the location information can include a variety of details such as the current location of the mobile computing device, the direction/heading for the mobile computing device, the speed at which the mobile computing device is travelling, other devices and/or structures that are located nearby the mobile computing device, and the elevation of the mobile computing device (e.g., floor, distance above or below ground) (at [00167]);
·the starting locations, destination locations, and/or routes along which the user is travelling or is likely to be travelling within a threshold period of time (e.g., within 5 minutes, 10 minutes, 15 minutes) can be determined based, at least in part, on the received location information and/or historical location information for the mobile computing device; for example, this can be done by determining the strength of patterns, to determine how well they will indicate future behaviour of the user of the mobile computing device, the strength of patterns being further based on: (i) the frequency with which the behaviour was observed; (ii) the frequency with which the user did not adhere to the pattern in spite of the same or similar context existing for the user; and/or (iii) how recently the user adhered to the pattern (at [00168]);
·locations and routes can be determined with different levels of granularity, e.g., feet or meters, city blocks, neighbourhoods, cities, and/or other appropriate levels of granularity (at [00170]);
·the order history information can be used to identify the order patterns and their strengths using similar techniques as those used for determining starting locations, destination locations, and/or routes (at [00172]);
·the order patterns can have varying levels of detail and can be abstracted/generalised with regard to one or more dimensions of the patterns; order patterns can be determined to associate specific and/or generic order dimensions (at [00173]);
·external factors for the user and/or the mobile computing device can be identified, including anything that could potentially influence the user’s behaviour, such as: (i) events going on around or near the mobile computing device (e.g., traffic, weather events); and/or (ii) things going on in the user’s professional and/or personal life (e.g., events, schedule, exercise, entertainment) (at [00174]);
·the external factors can be determined in any of a variety of appropriate ways, such as through accessing information services (e.g., weather information, traffic information, social network services) from third party computer systems and/or obtaining information from a user’s mobile computing device, and this may need the consent of the user of the mobile computing device (at [00174]);
·the ranking of candidate orders based on confidence values/scores can be modified based on:
othe strong correlations between one or more details of a candidate order and a current context for the mobile computing device, such as the mobile computing device being located at a particular location, in spite of other factors such as the time of day (at [00181]);
othe previous responses from the user of the mobile computing device and/or other users of other mobile computing devices (at [00182]);
othe incentives and/or promotions that are being offered by candidate providers, also considering: (i) the location of these providers in relation to the current location, destination location, starting location, and/or locations along a route of the mobile computing device; and (ii) previous user responses to such promotions/incentives being provided as suggested orders (at [00183]);
·the notification with the suggested order can be received by the mobile computing device without the user specifically requesting the notification or the suggested order (at [00190]).
Determining and using intelligent queueing information in the fulfillment of food orders
This appears to be another separate embodiment, which is described primarily with reference to Figure 11, reproduced below, which “is a conceptual diagram of an example system 1100 for determining and using intelligent queueing information in the fulfillment of food orders” (at [00193]). In the same paragraph, it is explained that the system includes mobile computing device 1102, computer system 1104, and provider computer system 1106, and that the mobile computing device provides food orders (e.g., food order 1120 for food item A and food item B) to the computer system which, in turn, determines intelligent queueing information to be used by the provider computer system. Somewhat similarly to Figures 7A-B, Figure 11 shows (as explained in, e.g., paragraph [00196]): example map 1108 having blocks 1114a-n; current location 1110 of the mobile computing device; route 1112 of the mobile computing device; current and/or estimated transit delays 1122 on the route; an example provider (e.g., a restaurant, a coffee shop, a fast food chain, a retailer, etc.) located at 1116 in block 1114m; and example steps A-H performed by different devices, according to the corresponding description on the figure, in the alphabetical order as indicated by the thick arrows.
Example steps A-H are performed as follows (at [00196]-[00211]):
A – Performed by mobile computing device 1102. Food order 1120 for items A and B is entered by the user of the mobile computing device through an application (e.g., mobile app, web browser, web-based application) that is running on the mobile computing device.
B – Performed by computer system 1104. Based on: (i) current location 1110 of mobile computing device 1102; (ii) location 1116 of the provider that is going to fulfill food order 1120; (iii) the information for the user of the mobile computing device (e.g., electronic calendar, social media content, electronic messages); (iv) the historical routes travelled by the user of the mobile computing device and historical travel patterns for the user (e.g., generally drives a car at the current time of the day, prefers city streets to highways, has previously travelled between locations 1110 and 1116 using estimated route 1112); (v) characteristics for the estimated route (e.g., speed limits, number of stop lights, number of stop signs); (vi) historical travel times along the estimated route for the user of the mobile computing device and other users; (vii) current and/or estimated transit delays 1122 (e.g., traffic, mass transit delays, weather events) along the estimated route; (viii) time of the day; (ix) day of the week; and/or (x) other appropriate factors. Information is obtained by accessing a variety of data sources (maintained by the computer system, the mobile computing device, and/or other third party computer systems), such as electronic map and route data sources, traffic data sources, location data sources, historical location and travel data sources, weather data sources, user information sources, and/or other appropriate data sources.
C – Performed by computer system 1104, however may also be performed by provider computer system 1106 (at [00208]). Details include the future time(s) when the provider should begin preparing food order 1120 and/or its component parts (i.e., items A and B) so that the food order is ready when the user of mobile computing device 1102 arrives at provider’s location 1116. Based on: (i) the estimated time of arrival; (ii) the provider’s current order queue that is being fulfilled by the provider; (iii) the estimated/expected additional orders that the provider will receive within a threshold amount of time; (iv) the historical food order fulfillment time periods (FTPs) – although the description uses the term “fulfillment time”, the context suggests that (in contrast with the FT) it refers to the time period required for fulfillment and not to the actual time the fulfilment will be complete; (v) the historical staffing levels at the provider as correlated with historical food order FTPs; (vi) the current staffing levels at the provider; (vii) the estimated lengths of time that it will take the provider to prepare the food order and/or its component parts; and/or (viii) other appropriate factors. A single estimated FTP for the food order and/or individual estimated FTPs for each of the items included in the order can be determined. Information is obtained by accessing a variety of data sources (maintained by computer system 1104, provider computer system 1106, and/or other third party computer systems), such as: (ix) a standard FTPs data source (e.g., the provider can have a list of standard FTPs for each of the items that the provider offers and the provider can provide the computer system with access to that list); (x) a current order volume data source; (xi) a current staffing level data source; and/or (xii) other appropriate data sources. Importantly, the estimated FTPs can be combined with the estimated time of arrival (e.g., by subtracting the FTPs from the estimated time of arrival) to identify one or more future times at which the provider should begin preparing the food order, which future times can be expressed as time periods from the current point in time (e.g., after 10 minutes for item A and after 5 minutes for item B), or as actual times (e.g., 5:10 pm for item A and 5:05 pm for item B).
D – Performed by computer system 1104.
E – Performed by provider computer system 1106. Includes inserting food order 1120 (and/or its component parts, items A and B) into one or more appropriate locations in one or more order queues that are used by the provider computer system (e.g., there may be separate cold food and hot food queues, and a separate beverage queue). This may involve inserting items A and B from food order 1120 ahead of other items from other food orders that are placed earlier than food order 1120 but have later FTs. For example, in order queue 1136: (i) the order with only item C is depicted as being currently undergoing fulfillment for a customer who is already present at provider’s location 1116; (ii) food order 1120 is depicted next along with the estimated time of arrival (in 20 minutes) and the future times to begin preparation (in 10 minutes for item A, and in 5 minutes for item B); and (iii) another order including item D for a customer who is estimated to arrive in 30 minutes, for which preparation should begin in 25 minutes. Food order 1120 is positioned above the order for item D, even though the latter order may have been received earlier. The items in the queue can be ordered by the provider computer system in chronological order so that a worker can simply fulfill items in the order presented (and at the times identified) to ensure appropriate and timely fulfillment of the food orders (e.g., item B is positioned above item A because the fulfillment of item B should begin sooner).
F – Performed by provider computer system 1106. Can include a variety of information regarding fulfillment of food order 1120, such as: (i) confirmation that the food order has been received by the provider; (ii) confirmation that the provider has scheduled the food order for fulfill at the estimated time of arrival for the user of mobile computing device 1102; and/or (iii) information on future times when fulfillment is scheduled to begin.
G – Performed by computer system 1104. The status information is also stored.
H – Performed by mobile computing device 1102. An example is shown on user interface 1144 and can include “one or more control features” (at [00211]), i.e., items 1150, 1154, and 1156, allowing the user, respectively, to: (i) change/designate the time of arrival at the provider’s location 1116 (thus overriding the automatically determined estimated time of arrival); (ii) modify food order 1120; and/or (iii) cancel food order 1120.
If the user of the mobile computing device selects one of the control features, the corresponding request is sent to the computer system. Depending on the request, one or more of steps B-F are repeated (at [00212]). However, “the mobile computing device 1102 and/or the computer system 1104 [may be] programmed to restrict schedule changes, order modifications, and/or order cancellations … to instances when the provider has not yet begun fulfilling the food order 1120 (or has progressed less than a threshold amount through fulfillment of the food order 1120)” (at [00213]). In the same paragraph, it is also explained that the use of the control features to start a corresponding action may (e.g., negatively) affect the FT for the food order and the mobile computing device can output a warning, which the user can either: (i) dismiss and proceed with the action; or (ii) cancel the action before it is transmitted to the computer system and/or the provider computer system.
In addition, as explained in paragraphs [00214]-[00215], steps B-F may be repeated as a result of updates, received by the computer system, reflecting the location of the mobile computing device as its user is moving towards the provider. If this is likely to affect the fulfillment of the food order, information is sent by the computer system to the mobile computing device to be output as a warning accompanied by a suitable control features so that the user can respond as they wish, e.g., cancel the order, set an arrival time, change from pickup/dine-in to delivery for the food order, select a different (for example, nearer) provider. Generally, warnings with appropriate set of control features can be provided to the user if the time of arrival is earlier than the FT for the food order.
It is also possible for another user, different from the user who is moving towards the provider with the mobile computing device, to place the food order, in which case the other user must be able to provide a unique identifier (e.g., email address, telephone number, social network identifier, username) for the user and/or the mobile computing device, so that the location of the mobile computing device can be used by the computer system (at [00216]).
Figures 13A-D, reproduced below, represent “flowcharts of an example technique 1300 for determining and providing intelligent queueing information to provider computer systems” (at [00230]). In the same paragraph, it is explained that the example technique can be performed by the computer system, however in some implementations it may additionally be performed locally by the mobile computing device. It should be noted that, when reproducing Figures 13B-D, I have omitted the labels “1300” and the arrows pointing from these labels to the actual flowcharts.
Based on my earlier discussions, I consider that Figures 13A-D are self-explanatory, and I do not regard it necessary to provide further detailed explanations. Nonetheless, it is perhaps worth noting that once the updated time of arrival is determined (at 1330) as a result of tracking the movement of the mobile computing device, this can be used to determine whether the mobile computing device is ahead of schedule, on schedule, or behind schedule, and thus the provider computer system and/or the mobile computing device can be informed accordingly (at [00235]).
Some possible examples for the continuation of the flowchart of Figure 13A are provided on Figures 13B-D, which represent “different portions of the technique 1300 that can be performed alone or together based on the updated time of arrival information” and “can be performed in various combinations, such as through combining their subparts with each other” (at [00236]).
It is also worth noting that the threshold in 1332 is set such that deviating by more than the threshold warrants updating the future time(s) and food order instructions (at [00237]), and that the determination as per 1340 can be made by polling the provider computer system or by comparing the current time and the future times that were provided earlier to that system (at [00238]). Importantly, “[s]teps 1342-[1]350 can be performed at any of a variety of other parts of the technique 1300. For example, steps 1342-[1]350 may be performed after step 1326. Other locations for the performance of steps 1342-[1]350 are also possible” (at [00239]). The determination at 1352 is made on the basis of the possible deviations from the predicted route of the mobile computing device and whether they are significant enough to warrant considering a different (e.g., located nearer) provider (at [00240]).
Figures 14A-B, reproduced below, represent “flowchart[s] of example techniques 1400 and 1450 for using intelligent queueing information to fulfill food orders from a customer device perspective and a provider computer system perspective, respectively” (at [00241]). When reproducing Figure 14A and Figure 14B, I have omitted the respective labels “1400” and “1450” as well as the arrows pointing from these labels to the corresponding actual flowcharts. Taking into account the previously provided explanations on the working of the system, I consider that the flowcharts of Figures 14A-B are entirely self-explanatory, and I do not need to provide any further comments.
Summary of the embodiments and comments on their implementation
In summary, the body of the specification describes various arrangements or systems concerning orders from a user, including: (i) for managing user’s orders for items; (ii) for real time delivery of an item; (iii) for providing order suggestions to mobile computing devices (i.e., to their users); and (iv) for determining and using intelligent queueing information in the fulfillment of food orders. The arrangements or systems involve at least a user device (or a mobile computing device) in possession of the user, an FC workstation (or a provider computer system) used by the FC (or the provider) that is given the task of fulfilling the order(s), and a server (or an ordering backend, or a computer system) that is in communication with the user device (or the mobile computing device) and the FC workstation (or the provider computer system) and acts as an intermediary between these devices/systems. In this regard, it is worth clarifying that the description uses different terminology in different embodiments. In the following, I will discuss the implementation of the described embodiments.
Managing user’s orders for items
105. The Applicant also refers to CCOM Pty Ltd and Ronald Howard Thomas v Jiejing Pty Ltd, Paravet Instruments Pty Ltd, Jeffrey John Yates and Eric Russell Chappell [1994] FCA 1168 (CCOM), and Re International Business Machines Corporation v Patrick Anselm Smith, Commissioner of Patents [1991] FCA 625 (IBM), emphasising that “each must involve a sufficient ‘an advance in computing technology’ despite the implementation of a scheme on a generic computer” (underlining added) because “[t]he decision in [Aristocrat] also confirms that … CCOM and IBM remain applicable despite the subsequent decisions in [RPL Central] and Research Affiliates” (AS, at page 9). Interestingly, the Applicant does not point to any Court decision where the inventions in CCOM and IBM are described as “schemes”. The Applicant further refers to “paragraph 85 of [RPL Central] in which the Full Court provided an outline of the Commissioner’s submissions regarding the claimed invention considered in CCOM” (AS, at page 10), and also to the part of the Patent Manual of Practice and Procedure (the PMPP) discussing the CCOM case (AS, at pages 10-11). The Applicant reaches the conclusion that “provided the implementation of an abstract data structure (i.e., abstract information) on a generic computer results in a material advantage, then the claimed invention should be considered directed to patent-eligible subject matter” and that “[e]ven in the event claims define the implementation of a scheme implemented upon a generic computer, this is insufficient to conclude that the substance of the claimed invention resides solely in the non-patentable scheme. Such a conclusion can only be regarded valid if the claims relate solely to ‘intellectual information’ or a method ‘that is in the nature of directions for use’” (AS, at page 11, original italic).
106. The Applicant emphasises that:
“… the material advantage of the CCOM claims relates to the ‘easier or improved’ finding of Chinese language characters (refer discussion of CCOM in Section 2.9.2.7 of the [PMPP]) to thereby provide more efficient Chinese language processing using a generic computing device, as distinct from the provision of a method that enables Chinese language processing using a generic computing device with an improved interface (as is sometimes mischaracterised by the Examination division of the Patent Office). In other words, the ability to process Chinese language characters on a generic computing device was known at the relevant priority date of the CCOM claims, and the claimed CCOM invention provided a more efficient means of Chinese language character processing (i.e., ‘more efficient’ in the sense that Chinese language characters can be searched and located more quickly and efficiently with the use of a standard computing device that was available to consumers at the priority date of the CCOM claims thereby conserving processing and memory resources) which, according to the [PMPP] in Section 2.9.2.7, should be regarded as ‘a material advantage’” (AS, at pages 11-12, underlining and bold original, italic added)
107. I find the above argument rather convoluted and unpersuasive. Firstly, the Applicant does not provide any reference or argumentation pointing towards the conclusion that the invention in CCOM indeed resulted in “conserving processing and memory resources”. Being “easier or improved” or “more efficient” does not, on its own, lead to such a conclusion. Secondly, conserving resources does not necessarily result in patentability in all cases. For example, one cannot patent the scheme of daylight savings (even if it were novel and inventive) or any other similar administrative arrangement for conserving electricity or other resources. Thirdly, while the invention in CCOM was indeed providing a material advantage, this was unrelated to the issue of “conserving processing and memory resources”.
108. In my view, the process of inputting characters in a computer, when detached from the meaning encoded by the characters, is not a business process. Instead, it can be considered a technical process in the field of computing, performed by some form of a user interface. The invention in CCOM provided for an improvement in the way in which Chinese characters, per se, are inputted in the computer. This improvement was not simply improvement in the aesthetics of the user interface or some other concept or metrics in the realm of fine arts or business operations. Instead, it can be considered a material improvement in the user interface, hence, an improvement in the computing technology. Importantly, the ingenuity of the invention in CCOM was not directed towards the meaning or the information content encoded by the inputted Chinese characters, but towards the technical process of inputting Chinese characters itself.
109. The Applicant also notes that “the finding of patentability of the COMM [sic] invention has, on occasion, been characterised by Delegates of the Commissioner in the Examination Division and the Opposition and Hearings Division of the Australian Patent Office [in a way that] is entirely inconsistent with the [PMPP] [and] the submissions of the Commissioner in [RPL Central] with reference to the CCOM decision” (AS, at page 12). The Applicant further submits that:
“Without adherence to the guidance provided in the [PMPP] by Delegates of the Commissioner, the Applicant is at a disadvantage with respect to understanding how principles established in various judicial decisions are interpreted and applied by Delegates. Accordingly, the Applicant respectfully submits that all Delegates of the Commissioner must necessarily follow the guidance provided in the [PMPP] when applying interpretation of various judicial decisions, and moreover, should confine their analysis, interpretation and application of principles established in judicial decisions to that provided in the [PMPP] to thereby ensure procedural fairness.” (AS, at page 12, underlining added)
110. Firstly, as I noted earlier, the Deputy Commissioner and the delegates of the Commissioner apply the principles developed by the Courts to the facts of each individual case to reach a conclusion. Since the Court decisions forming the case law are all publicly available, I am unsure how following the principles established by the case law could lead to lack of procedural fairness or other disadvantage to the applicants. In cases where an applicant disagrees with the relevance or the interpretation of the case law that was applied in a particular hearing decision, the matter is resolved in accordance with the Act.
111. Secondly, while the PMPP is indeed based on the Act, the Regulations, and the case law, for operational reasons it is necessarily limited in volume and, thus, non-exhaustive. As such, the PMPP is intended to provide general guidance to the examiners. It is not intended to be used as a substitution for the entire body of available case law that the Commissioner must follow.
112. Thirdly, I must emphasise that when particular reasoning that is based on the case law does not employ the same wording as that used in the PMPP, this fact does not necessarily imply that that particular reasoning is “entirely inconsistent” with the PMPP. As I explained in the previous paragraph, the PMPP is not intended to be exhaustive with respect to the case law and, hence, it is not unreasonable to expect that, on occasion, hearing decisions could include considerations and reasoning that are not included in the PMPP.
113. Finally, I disagree with the Applicant’s simplification that:
“Clearly there can be an ‘advance in computer technology’ despite the implementation of an abstract idea on a generic computer provided the implementation of the abstract idea by the computer provides a practical and useful result as confirmed by the Full Court in [Aristocrat].” (AS, at page 7, underlining added)
114. Despite the Applicant’s assertion to the contrary, I do not believe that such a conclusion can be reached on the basis of Aristocrat. I also do not believe that elevating the importance of providing a practical and useful result (at the expense of other relevant considerations) is supported by the case law in general. I refer, for example, to the statements of Perram J at [4] in Repipe (Nicholas and Burley JJ agreeing at [13] and [14], respectively):
“The invention thus consists of the use of the features of GPS-enabled mobile devices to communicate with a central server which handles information in a particular way. Whilst I have no difficulty in accepting that the invention is useful and represents a clever use of mobile devices and a server, I am unable to see how it constitutes an advance in computer technology. Rather, it is a deployment of existing computer technology for a useful purpose.” (underlining added)
115. The Applicant also provided some submissions related to the application of the legal principles to the instant invention and I will discuss these in my considerations below.
The substance of the claimed invention
The problems solved by the claimed invention
116. The Applicant states that the Examiner mischaracterised the problem addressed by the instant invention and that “the Examiner appears to have confused the objective of the present invention (i.e., the management of user expectations when an order cannot be fulfilled) with the technical problem solved by the combination of technical features recited in the claims that ultimately fulfil the objective” (AS, at page 3, underlining added). In the following, I will attempt to identify this technical problem. According to the Applicant:
“In this regard, the claimed invention requires the system to determine the requirement for an alternate item suggestion. The claimed invention further requires the provision of the alternate item suggestion without further input from the user after the user places an order which, in an electronic on-line ordering system comprises a technical problem requiring a technical solution. Still further, the present claims require the system to disable entering, by a user, a request for the item from the [FC] which also represents a technical problem requiring a technical solution.” (AS, at page 3, original underlining).
117. I note that the Applicant does not provide any explanation as to why “the provision of the alternate item suggestion without further input from the user after the user places an order … comprises a technical problem”, “in an electronic on-line ordering system”. While I accept that this is done automatically by a suitably programmed computing device(s), I refer to the part of RPL Central (quoted earlier in this decision) commenting on the invention considered in Research Affiliates:
“There was no suggestion of the utilisation of an unusual technical effect. The inventors made changes to the computer program to cause the program to gather and process data and perform data manipulations and calculations, including macros to manipulate and refine data. Such use of algorithms was not ‘foreign’ to the normal use of computers.” (at [102], underlining added)
118. I consider the underlined parts of the above quotation highly relevant to the Applicant’s assertion. The mere fact that a computer is programmed to perform specific functions does not necessarily mean that a technical problem was encountered and solved, and no such problem is evident from the Specification. The same is also applicable to the requirement to “disable entering, by a user, a request for the item from the [FC]”. This merely reflects the ordinary, well-known functionality of a user interface in relation to providing users with different options, where some options may be inactive or simply not provided at all, thus disabling the user from performing the corresponding action. Even if the disabling may occur as a result of a certain decision reached automatically by a suitably programmed computing device and communicated to the user device that controls the user interface, this, on its own, still does not go beyond the “normal use of computers”. I am unable to identify any technical problem that needs to be overcome to implement such a functionality.
119. The Applicant also notes that:
“… the Examiner continues to characterise the problem as ‘logistical’ instead of ‘technical’ in nature. However, in arriving at this conclusion, the Examiner dismisses various technical features from consideration including, for example ‘providing, over the network and by the bulk order processing server, instructions that cause the graphical user interface of the web application on the user device to (i) provide the alternate suggestion to the user without the user providing further input after the user enters the order through the graphical user interface of the web application and (ii) disable entering, in the graphical user interface of the web application, a request for the item from the [FC], wherein the alternate suggestion includes the one or more incentives only when the bulk order processing server determines to include the one or more incentives with alternate suggestion’. In this regard, it will be appreciated that the ability to automatically provide a user with an alternate suggestion through a graphical user interface, or prevent a user from entering a worthless request for an item online, in the event the system predicts an online order is unable to be timely fulfilled, represent technical problems that require a technical solution analogous to Hearing Officer’s Bartram’s comments in paragraph 41 of eBay” (AS, at pages 5-6, underlining and italic original)
120. I have already commented on “automatically provid[ing] a user with an alternate suggestion through a graphical user interface” and on using the user interface to prevent certain user actions. As far as “prevent[ing] a user from entering a worthless request for an item online, in the event the system predicts an online order is unable to be timely fulfilled” (underlining added), I do not necessarily agree that the invention defined in claim 1 solves this problem. As I already noted in relation to claim interpretation, instructions to “disable entering, in the graphical user interface of the web application, a request for the item from the [FC]” are provided regardless of whether or not the order can be fulfilled successfully. However, even if I consider the invention defined in claim 2, which indeed includes “determining that the order cannot be fulfilled by the [FC] for the [FT]”, I still cannot see any technical problem requiring a technical solution (as asserted by the Applicant) and the Specification does not help in identifying one. In that respect, I do not consider that how to determine (i.e., to predict) whether a particular order can be fulfilled successfully is, in itself, a technical problem. In my view, this problem is purely a business operations problem, and nothing suggests to me that, in overcoming this business problem, certain technical problem(s) were encountered.
121. Lastly, the Applicant submits that “the claimed invention extends beyond a mere abstract idea or scheme (refer [Aristocrat], paragraph 118) and addresses the technical problems associated with wastage of computing and network resources along with inefficient processing of online orders” (AS, at page 9, underlining added).
122. It is important to note however that, in comparison with the usual scenario of the user devices communicating directly with the local [FC] workstations, the instant invention introduces a whole new layer of additional computing technology (i.e., the bulk order processing server) and the associated with that additional network traffic. I am unsure as to how this could resolve a potential problem associated with “wastage of computing and network resources” in general, hence I find this argument to be somewhat speculative. In addition, “computing and network resources” are not natural or physical resources, rather they relate to the processing capabilities of the employed computing devices and the data throughput capabilities of the networks. This should be borne in mind when using the word “wastage” to describe the potentially unnecessary overuse of these capabilities. It is also worth noting that “inefficient processing of online orders” is not a technical problem in itself, and nothing in the Specification suggest that such potentially inefficient processing is a consequence of any technical limitations.
123. In summary, I am unable to identify any technical problems that are addressed by the instant invention. I can characterise the problems being solved as problems entirely within the realm of business operations, unrelated to overcoming any computing technology limitations. Hence, the instant invention is addressing only problems of business nature.
The solution to the problems and the effect of the working of the invention
124. The Applicant asserts that:
“… the Case Examiner has failed to appreciate a number of technical features that, in combination, provide at least the technical benefit of more efficient processing of orders in an online environment in which the online orders are more efficiently fulfilled.” (AS, at page 3, underlining added)
125. In my view, the word “efficient” has quite a broad meaning. Thus, improvements in efficiency are not necessarily technical improvements and do not necessarily produce technical effects. With this in mind, I am uncertain as to why “more efficient processing of orders in an online environment” such that “the online orders are more efficiently fulfilled” should be considered a “technical benefit”. Even in an online environment, processing of orders is still, at its core, a business activity. While the present invention may improve the efficiency of this business activity, thus resulting in certain business improvements in, e.g., customer satisfaction, profit (see the parts of paragraphs [0067] and [0084] quoted earlier), etc., I cannot see how these benefits can be considered technical. The online environment, on its own, is not sufficient to render a technical character to the potential benefits of using the invention.
126. The Applicant also submits that:
“The present claims also provide the technical benefit of conserved computing and network resources since a user (consumer) is prevented from placing and completing an online order for an item in circumstances where, for example, the system predicts, based at least on stored historical preparation information for the [FC] that describes historical performance of the [FC] relevant to fulfillment of the item by the [FT] and current order information, the item is unlikely to be timely fulfilled. In other words, the system and method of the present invention avoids users placing orders for items that are unavailable or unlikely to be timely fulfilled which avoids the [FC] processing orders that are unable or unlikely to be timely fulfilled.” (AS, at page 3, underlining added)
“In this regard, the Applicant submits that the present claims are limited to determining, by the bulk order processing server, the requirement for an alternate suggestion for the user device for provision through the graphical user interface of the web application based at least on a portion of the stored historical preparation information and the current order information. This results in an improvement since the system avoids a user placing and completing an order for an item for which it has been determined that the item will not be timely fulfilled by the [FC] which conserves processing and network requirements and is therefore a ‘meaningful limitation’ with a material and tangible benefit.
Therefore, the Applicant contends that the claimed invention results in a technical contribution by reducing processing and network requirements that would otherwise be required. This improvement provides a practical and useful result in respect of avoiding wastage of computer resources. The fulfillment of orders without the need for excess processing and network usage is one clear benefit with the customer assured that they will receive a timely fulfilled order being another.” (AS, at page 8, underlining added)
127. I already noted that the provision of a practical and useful result is not, in itself, sufficient to render a claimed invention manner of manufacture. An invention may well produce a practical and useful, from a business operations perspective, result and still be properly characterised as a unpatentable business innovation. This is highly relevant to the Applicant’s further submission that “the system and method of the present invention (as claimed) … also provides the practical and useful result of consumers receiving fulfillment of their online orders processed more efficiently and quickly since employees at the [FC] will not be occupied with managing, processing and cancelling/changing online orders that are unlikely to be timely fulfilled.” (AS, at pages 3-4, underlining added).
128. With respect to the arguments about “avoiding wastage of computer resources” and “conserved computing and network resources”, I already explained that I find these arguments to be somewhat speculative. It would appear that the Applicant regards that this avoiding of wastage and conserving occurs is a result of “[t]he fulfillment of orders without the need for excess processing and network usage” because of the avoidance of “placing orders for items that are unavailable or unlikely to be timely fulfilled which avoids the [FC] processing orders that are unable or unlikely to be timely fulfilled”. In continuation of my earlier discussion of this matter, even if I accept that there may be some potential reduction of the workload for the FC workstations, the Applicant’s arguments seem to omit one important point. This important point is that the instant invention is likely to require a considerable amount of computing resources in order to determine (i.e., to predict) whether the user orders are “orders for items that are unavailable or unlikely to be timely fulfilled”. For example, this may involve executing algorithms based on complex mathematical techniques (see my earlier discussion of paragraphs [00263]-[00268] of the description). It is also reasonable to infer that the processing resources and network utilisation, required to track over time the performance of multiple FCs in fulfilling orders for different items and the responses of multiple users to alternate suggestions, would not be insignificant. It follows that even if the effect of “conserved computing and network resources” while solving a business operations problem were to be considered a technical effect, there is nothing to suggest that such effect would indeed be observed. To summarise, I am unable to identify any technical effect of the working of the invention. The effect and any potential benefits are entirely in the realm of business operations.
129. The Applicant continues:
“Regarding the present invention, the Applicant submits that the combination of technical features recited in the claims including at least ‘determining, by the bulk order processing server, the requirement for an alternate suggestion for the user device for provision through the graphical user interface of the web application based at least on a portion of the stored historical preparation information and the current order information, …’, ‘identifying, by the bulk order processing server using one or more suggestion rules from a suggestion rules database, at least one of an alternate item, an alternate [FC], or an alternate time to include in the alternate suggestion based on the stored historical user information that indicates a likelihood that the user will indicate acceptance of an alternate suggestion at one of the user devices and further based at least on historical performance of the alternate [FC], current orders for the alternate [FC], historical performance for the alternate item, current orders for the alternate item, or current orders for the alternate time, wherein identifying at least one of an alternate item, an alternate [FC], or an alternate time to include in the alternate suggestion based on the stored historical user information that indicates a likelihood that the user will indicate acceptance of the alternate suggestion ….[’] and ‘providing, over the network and by the bulk order processing server, instructions that cause the graphical user interface of the web application on the user device to (i) provide the alternate suggestion to the user without the user providing further input after the user enters the order through the graphical user interface of the web application and (ii) disable entering, in the graphical user interface of the web application, a request for the item from the [FC]’ represents an ‘advance in computing technology’ since it provides a technical solution to the problem(s) faced by the inventors.” (AS, at pages 8-9, original italic, underlining added)
130. I must note that claiming a “combination of technical features” (whatever this might mean in the context of the features being actions performed by computing devices in certain logical order to perform what is clearly a business method) does not always lead to a conclusion that the claimed invention “provides a technical solution to the problem(s) faced by the inventors”. Assuming otherwise would mean that the inventions claimed in RPL Central, Encompass, Rokt, and Repipe would also be providing such technical solutions and hence would likely be patentable. Indeed, there is a distinction between a technical solution and a business (e.g., administrative, organisational, logistical, marketing, advertising, etc.) solution that utilises technical means. The technical features of instant claim 1 represent only the usual, well-understood functionality of well-known computing devices and systems, as employed to perform the business method. Such a “combination of technical features” cannot, in itself, support a conclusion of the presence of a technical solution or “an ‘advance in computing technology’”. I am unable to identify any technical solutions provided by the instant invention.
131. The Applicant asserts that “the present invention may be regarded analogous to the CCOM claims since the present claims define a method that, when implemented on a standard computing device, results in an improved method of placing and completing online orders in a more efficient manner requiring less computer processing and computer network resources.” (AS, at page 12, underlining added). I have already discussed the invention in CCOM as well as the Applicant’s arguments with respect to the alleged conservation of processing and network resources. I will only add that “placing and completing online orders” is a process of a business nature and, as such, it is quite different from the process of inputting Chinese characters in a computer, which I discussed earlier.
132. The Applicant further submits that:
“More particularly, the result of implementing the invention is a system and method enabling the efficient placement and completion of online orders that avoids cancelling/changing orders that are unable to be timely fulfilled. According to the presently claimed invention, users are able to place orders and suppliers are able to complete orders with greater efficiency regarding usage of computing resources as compared with prior systems. Accordingly, the invention clearly gives effect to more than an abstract idea and provides a technical contribution that gives rise to a practical and useful result and has ‘practical application’. As a result, the presently claimed invention should be considered to embody the requisite advance in computing technology and should be considered patent-eligible subject matter” (AS, at page 9, underlining added)
133. I believe that I have already discussed the points raised by the Applicant in the above quotation. While the claimed invention may have “practical application”, it is clearly directed to a business method implemented through the utilisation of computing technology. As I quoted earlier in this decision, “[w]here the claimed invention is to a computerised business method, the invention must lie in that computerisation” (RPL Central at [96]). Whether or not this is the case with the instant invention will be the subject of my next discussion.
The “computerisation” or the computer implementation
134. I have already considered the computer implementation of the instant invention and noted the general lack of any specificity with respect to the hardware elements and the software techniques to by utilised for that implementation. Such lack of specificity cannot support a finding of an invention or ingenuity in the computer implementation.
135. Interestingly:
“The Applicant also refers the Hearing Officer to, for example, paragraphs [00263] to [00268] of the present specification that clearly describes that the implementation of the ordering backend of the presently defined system involves the optimisation and execution of a variety of tasks relating to processing or routing bulk orders, including, but not limited to, sorting, assigning, routing, queuing, distributing and scheduling. As described in paragraph [00263], this involves the application of various optimization techniques (for example, linear programming) that result from well-developed and active areas of scientific research that find basis in technical, as compared to logistical, fields of endeavour.” (AS, at page 9, underlining added)
136. I have already discussed these paragraphs of the description and I am unsure as to how they could help the Applicant’s case. Firstly, fair reading of the paragraphs does not support the Applicant’s assertion (see, e.g., paragraph [00265]: “applications in operational research, including planning and logistics”, and similar text in paragraph [00266]). Secondly, as I noted during that earlier discussion, the paragraphs in question could cast certain doubts concerning the requirement for clear enough and complete enough disclosure under s 40(2)(a); however, I do not need to resolve these doubts. Importantly, these paragraphs discuss certain complex mathematical techniques as being appropriate to utilise when implementing the instant invention. In that respect, any potential deficiency (if it exists) would most likely be related to the details of such techniques as well as of the mathematical models and algorithms that are to be employed by the skilled addressee to produce the invention. These techniques, models, and algorithms are abstract in nature and, as such, a determination of whether or not they are sufficiently present in the description cannot affect the outcome of my decision with respect to manner of manufacture.
The substance of the claimed invention – conclusion
137. In conclusion, I consider that the substance of the invention defined in claim 1 resides in a new and inventive (as per the Last Report) arrangement, involving networked computing devices and systems. According to this arrangement, following a user’s order for an item from a particular FC for a particular FT: (i) alternate order suggestions are provided to the user; and (ii) the user is prevented from proceeding with the original order. The specific details of the arrangement are as defined in the claim, however more generally:
· the requirement for suggestions is determined based on current order information about the other orders to be fulfilled at the FC and on information accumulated through tracking, over time, the performance of the FC; and
· the suggestions (which may also include incentives) are generated using suggestion rules, and are based on information as above for the FCs and on information accumulated through tracking, over time, user responses to such suggestions.
138. I note that the above finding is largely applicable to each one of the independent claims given the wording similarities as per my earlier discussion on that point. The substance of the invention defined in each dependent claim may be slightly different due to the differences in scope. Importantly however, each one of the dependent claims is still, as a matter of substance, directed to the above mentioned arrangement, involving networked computing devices and systems. Any differences are merely reflective of some variations of the arrangement (see, e.g., my earlier discussion of the additional feature defined claim 2) as well as further details of the arrangement.
Does the Specification claim an invention that is a manner of manufacture?
139. Having identified the substance of the claimed invention as above, it is clear that, as a matter of substance, the claimed invention cannot be characterised as a patentable technological innovation. The above mentioned arrangement is, in fact, a business arrangement, hence I would characterise it as an unpatentable business innovation in the realm of electronic commerce and logistics. As a matter of substance, the claimed invention could also be described as “a computerised business method” without any invention “in that computerisation” (see RPL Central at [96], quoted above) or, in other words, as a mere business scheme. Therefore, I consider that none of the claims in the Specification defines an invention that is a manner of manufacture.
Can an allowable amendment overcome the negative finding?
140. Earlier in this decision, I have discussed the body of the Specification in sufficient detail (perhaps even excessive detail), and I am unable to identify any material that could form the basis for a claim that defines a patentable invention. The disclosure is limited to the high-level business operations details of various possible implementations of the business scheme of claim 1 or similar business schemes, which include the arrangements for providing order suggestions to users or customers via their mobile computing devices as well as for determining and using intelligent queueing information in the fulfillment of food orders.
141. In the circumstances where I can see no clear way to overcome my negative finding, and in view of the public interest in certainty as to the status of the Application, I consider that providing the Applicant with a further opportunity to amend and continuing the examination would serve no useful purpose.
CONCLUSION
142. I have found that no claim of the Application, as proposed to be amended, defines an invention that is a manner of manufacture. Furthermore, I have formed the view that no allowable amendment could result in claiming a patentable invention.
143. It follows that the Application should be refused.
Dr V. Z. Kolev
Delegate of the Commissioner of Patents