Accenture Global Solutions Limited - [2022] APO 8

IP AUSTRALIA
AUSTRALIAN PATENT OFFICE
Accenture Global Solutions Limited [2022] APO 8

Patent Application: 2019268056
Title:Artificial intelligence and machine learning based incident management

Patent Applicant:                   Accenture Global Solutions Limited
Delegate:  Dr N. R. Madsen – Deputy Commissioner of Patents
Decision Date:  10 February 2022
Hearing Date:  Written submissions completed 28 January 2022

Catchwords: PATENTS – section 45 – examiner’s objection – using machine learning and artificial intelligence for incident management based on requirements and priority for completion of tasks – invention in substance directed to a mere scheme – alleged invention not a manner of manufacture – application refused

Representation: Patent attorneys for the applicant: Murray Trento & Associates Pty Ltd

IP AUSTRALIA
AUSTRALIAN PATENT OFFICE
Patent Application: 2019268056
Title:Artificial intelligence and machine learning based incident management

Patent Applicant: Accenture Global Solutions Limited
Date of Decision: 10 February 2022
DECISION
The claims of the application, as proposed to be amended, do not define a manner of manufacture. I do not see any subject matter of substance in the body of the specification from which valid claims could be drafted to overcome this finding.

I refuse the application.
REASONS FOR DECISION
BACKGROUND

Accenture Global Solutions Limited (“the applicant”) filed patent application 2019268056 on 18 November 2019 as a convention application based on US filing 16/232881. Examination was requested on the same day, and the application was subjected to four examination reports, the final of which issued on 8 July 2021. In each of those reports, the examiner maintained an objection that the claims do not define a manner of manufacture, considering the claims novel and inventive in all reports. The applicant requested to be heard on 9 July 2021.
The examination of the present application is governed by the Patents Act 1990 (“the Act”) as amended by the Intellectual Property Laws Amendment (Raising the Bar) Act 2012 (“the Raising the Bar Act”) as the application was filed after 15 April 2013. Thus, the standard of proof that applies in the present case is the balance of probabilities (subsection 49(1)). I must accept the application if satisfied on the balance of probabilities that the application complies with the Act. If I am not so satisfied, then I can refuse the application.
The final date for acceptance of the application was 10 July 2021, however paragraph 13.4(1)(g) of the Patent Regulations 1991 is available to extend the time for gaining acceptance to 3 months (or longer if appropriate under sub-regulation 13.4(3)) from the date of the present decision.
SPECIFICATION
The alleged invention relates to techniques for managing incidents such as work events for an organisation. In paragraph [0001] of the specification it is noted that incidents may be managed based on requirements set forth with respect to priority of completion or availability of personnel. The specification then follows with consistory statements for the claimed invention and a brief listing of the figures. At [0028] of the specification there begins an overview of the nature of the invention:
…artificial intelligence and machine learning based incident management, and non-transitory computer readable media having stored thereon machine readable instructions to provide artificial intelligence and machine learning based incident management are disclosed herein. The apparatuses, methods, and non-transitory computer readable media disclosed herein provide for artificial intelligence and machine learning based incident management by dynamically identifying which organizational operation is adversely impacted by different incidents (e.g., work events), and which specific critical organizational key performance indicators (KPIs) with respect to such an organizational operation are adversely impacted by such incidents. An incident may be described as a task that is to be performed. The apparatuses, methods, and non-transitory computer readable media disclosed herein provide for prioritization of incidents (or work events), such as information technology incidents that may be linked to critical organizational KPIs. In this regard, incidents may be prioritized, not only based on a number of users impacted or the specific underlying adverse impact on certain organizational transactions, but also based on critical organizational KPIs that are to be improved.
It is further noted at [0029] that it is technically challenging to determine the linkage between incidents and critical organisational KPIs. These technical challenges are not expanded upon further at this stage of the description, however it is noted at [0030] that they are said to be addressed by:
·Classifying incidents based on key fields in the data
·Feeding a backlog of incidents and generating a list of incidents that need to be prioritised
·Applying tokenisation and a knowledge graph to identify organisational operations and KPIs for a given set of incidents to determine metrics with respect to which incident has an impact on a KPI and how the incidents should be prioritised in accordance with their KPI impact.
Before discussing figures presented in the specification, paragraph [0032] provides an overview of the means of implementing the described methods (my emphasis):
For the apparatuses, methods, and non-transitory computer readable media disclosed herein, the elements of the apparatuses, methods, and non-transitory computer readable media disclosed herein may be any combination of hardware and programming to implement the functionalities of the respective elements. In some examples described herein, the combinations of hardware and programming may be implemented in a number of different ways. For example, the programming for the elements may be processor executable instructions stored on a non-transitory machine-readable storage medium and the hardware for the elements may include a processing resource to execute those instructions. In these examples, a computing device implementing such elements may include the machine-readable storage medium storing the instructions and the processing resource to execute the instructions, or the machine-readable storage medium may be separately stored and accessible by the computing device and the processing resource. In some examples, some elements may be implemented in circuitry.
FIG. 1 provides an illustration of an example artificial intelligence and machine learning based incident management apparatus as noted in paragraph [0033]. It is difficult to see a particular form of an “apparatus” depicted by FIG.1 with the apparatus depicted on a very high conceptual level showing only the set of functional elements. However, the figure remains useful in depicting the described and claimed invention.
FIG. 1 shows inputs and outputs of what is referred to as an artificial intelligence and machine learning based incident management apparatus. To this extent it would appear that the apparatus may constitute some kind of computer running software that facilitates the modular functionality that is described within item 100. This computer includes a data receiver module that for a specific time duration, ascertains data related to incidents associated with organisational operations. This data is pre-processed to remove specific features of the incident data such as specific characters, words and/or phrases. In other words, the data is in some way “cleaned up” to improve its usefulness. Furthermore, it appears that the data may be pre-processed as either mature or naïve, and if the data is considered naïve, some kind of deep learning may be utilised to extract features from the data. Following this an analysis is performed using an incident data analyser module to determine the organisation that is associated with the pre-processed data.
The processor of the computer then executes a classification model generator module by separating the pre-processed data into a first part and a second part, wherein the first part trains the model and the second part tests the model. The specification discusses at paragraph [0040] what would appear quite standard machine learning techniques in that a precision score may be used to evaluate the trained model such that iterative training of the model is performed by the model generator until a threshold precision score is reached.
A corpus generation module is executed (item 120) to generate a corpus based on mapping of the organisational operations to associated organisational key performance indicators. A corpus is understood to represent a collection of text, typically labelled with annotations, and in machine learning is the equivalent of a data set. FIG. 6 shows an example corpus showing fields for organisation operation and KPI name. Such a dataset can be generated using an ontology to map relationships between words.
An output generator module is then used to ascertain new incident data for a different time period to that of the data used for model generation. This incident data may be related to a different organisation compared to the organisation for the initial incident data. The output generator then, in some manner, uses the corpus, the trained machine learning classification model and further organisational operations of the organisation to generate an output. This output is essentially the determination of an organizational operation impacted by an incident of the further plurality of incidents associated with the further organizational operations of the organization, and a particular KPI associated within the operation.In other words, an analysis is conducted that identifies likely issues arising in organisational function based on historical events and identifies associated and relevant KPIs for consideration.
This output generator may also conduct an analysis that determines a priority of each incident of a plurality of incidents and modify (for example increase) the priority of a particular incident based on the priority of the incident corresponding to the impacted critical organisational KPI. Again, in other words, it would appear that an analysis is being performed of likely issues and consequences with respect to incidents, and reprioritisation is occurring on the basis of historical knowledge of organisational operation and the provided set of critical KPIs. Following this an organisational operation controller executed by the computer may, on the basis of the data output, control an operation of some system (“e.g., a hardware component such as a machine”, see [0102]) associated with the organisation. This ultimate control is discussed at [0045] – [0047] as follows:
…For example, with respect to management of field requests as disclosed herein, some selected requests for field service transactions may be of importance to an organization (e.g., requests for certain emergency responses related to fixing of existing connections in the utilities industry). Incidents related to such requests may be missed within a relatively large number of incidents that are handled on a regular basis. In this regard, the output 136 that identifies an organizational operation impacted by an incident may provide for the identification of the urgency of the exact service requested. The prioritization may be achieved by reading the description of the emergency request, noting key words that highlight the necessity to process such field force requests quickly, and finally re-prioritizing such incidents to modify an existing connection in the utilities industry.
The output 136 may also provide a real time understanding of the information technology effort and cost an organization may be undertaking on the maintenance of a critical organizational process index.
The output 136 may further provide real time alerts indicating, for example, artificial intelligence led suggestions regarding rearrangement of the information technology effort cost, and management towards solving the key organizational problems rather than using the available information technology effort without any strategic benefits.
Ending the discussion of FIG. 1 is a brief discussion of the function of the classification model generator module and some potential benefits provided by the invention (paragraphs [0049] and [0050]):
As disclosed herein, the classification model generator 116 may train, based on the analyzed preprocessed incident data, the machine learning classification model 118. In this regard, the classification model generator 116 may implement statistical model-based machine learning to indicate which organizational operations have the highest potential to be affected due to an incident (e.g., a problem in an associated application). The accuracy of the results of the classification model generator 116 may correspond to the adequacy of description of incidents.
The apparatus 100 may bridge the gap, for example, between the focus of the incidents (e.g., information technology related to the application layer on which incidents are reported), and the focus of the organization (which is more on impacted organizational operations, and key performance indicators that are critical to the organization). The apparatus 100 may identify the underlying organizational operations that are affected by the incident reported at the application layer.
The specification, as presently proposed to be amended on 22 April 2021 includes 8 claims, with claims 1, 4 and 7 being independent. Examination reports appear to consider these amendments allowable, and I will proceed on this basis. Each of the independent claims are directed to similar subject matter and as such, claims 1-3 present a useful picture of the entirety of the claim set and the invention discussed already above. Claims 1-3 are as follows:
1.   An artificial intelligence and machine learning based incident management apparatus including:
an incident data receiver, executed by at least one hardware processor, that:
ascertains, for a specified time duration, incident data related to a plurality of incidents associated with organizational operations of an organization;
an incident data preprocessor, executed by the at least one hardware processor, that:
preprocesses the incident data to remove specified features including at least one of specified characters, specified words, or specified phrases of the incident data;
           classifies, based on a quality of the incident data, the incident data as mature or naïve and, based on the naïve classification of the incident data, utilizes deep learning to extract features from the incident data;
an incident data analyzer, executed by the at least one hardware processor, that:
analyzes, by performing feature engineering, the preprocessed incident data to determine the organization associated with the preprocessed incident data;
a classification model generator, executed by the at least one hardware processor, that:
separates the analyzed preprocessed incident data into a first part that is to be used to train a machine learning classification model, and a second part that is used to test the trained machine learning classification model,
           trains, based on the analyzed preprocessed incident data from the first part, the machine learning classification model, and
           tests, based on the analyzed preprocessed incident data from the second part, the trained machine learning classification model by determining a precision score and, based on a determination that the precision score is less than a specified precision score threshold, iteratively training the machine learning model until the precision score is greater than or equal to the specified precision score threshold;
a corpus generator, executed by the at least one hardware processor, that:
generates, based on mapping of the organizational operations of the organization to associated organizational key performance indicators by utilizing an ontology to map relationships between the organizational operations of the organization and the associated organizational key performance indicators; a corpus, and
           for each incident of the plurality of incidents, determines, based on the corpus, an organizational key performance indicator that is impacted by the incident;
an output generator, executed by the at least one hardware processor, that:
ascertains, for another specified time duration, new incident data related to a further plurality of incidents associated with further organizational operations of the organization,
           determines, specified organizational key performance indicators associated with the further organizational operations of the organization, and
           determines, based on the corpus and the trained machine learning classification model, and from the further organizational operations of the organization, an output that includes an organizational operation impacted by an incident of the further plurality of incidents associated with the further organizational operations of the organization, and a specified organizational key performance indicator, from the specified organization key performance indicators, associated with the organizational operation,
wherein the output generator is executed by the at least one hardware processor that:
           determines a priority of each incident of the further plurality of incidents; and
           modifies, based on the determined priority of each incident of the further plurality of incidents, the priority of the incident corresponding to the impacted organizational operation; and
an organizational operation controller, executed by the at least one hardware processor, that:
controls, based on the output, an operation of a system associated with the identified organization.
2. An apparatus according to claim 1, wherein the specified time duration is different from the another specified time duration.
3. An apparatus according to either claim 1 or claim 2, wherein the output generator is executed by the at least one hardware processor to modify, based on the determined priority of each incident of the further plurality of incidents, the priority of the incident corresponding to the impacted organizational operation by: increasing the priority of the incident corresponding to the impacted organizational operation.
MANNER OF MANUFACTURE
In National Research Development Corporation v Commissioner of Patents (“NRDC”), [1959] HCA 67, (1959) 102 CLR 252, the High Court provided a statement of the law regarding manner of manufacture. At page 275:-
“… 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”.
The High Court though was not laying down a precise formulation that can be applied unthinkingly. In D’Arcy v Myriad Genetics Inc (“Myriad”), [2015] HCA 35, at [23]:
“This Court in NRDC did 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.”
That case-by-case approach must have regard to the substance of the claimed invention, not simply the form of the claim. The point was made succinctly in the Myriad case by Gageler and Nettle JJ. At [144]:-
“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.”
Thus, the assessment as to patentable subject matter in this context requires a consideration of the substance of the invention. To further guide the determination of patentable subject matter in the context of computer implemented inventions, a range of principles have been developed. The principles of law that apply to the present matter are themselves substantially uncontroversial, noting however that on a case-by-case basis at times they can be difficult to apply. These principles were usefully summarised and generally accepted at [200]-[201] by Robertson J in Rokt Pte Ltd v Commissioner of Patents [2018] FCA 1988 (Rokt 1) at [189] as follows:
“17.1 The Court must decide, as matter of substance not form, whether the claimed invention is the proper subject-matter for a patent: RPL Central at [99]; Research Affiliates at [106], [117].
17.2       This requires consideration of both the claims of the Application and the invention described in the body of the specification: RPL Central at [114].
17.3       The assessment is not done mechanically. There are no precise guidelines or mathematical formula. It is ‘a question of understanding what has been the work of, the output of, and the result of, human ingenuity’ and then applying the developed principles: Research Affiliates at [116]. See further RPL Central at [112]:
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 ...
17.4       One well-settled principle is that a distinction exists between a technological innovation and a business innovation. A technological innovation is patentable. A business innovation is not: Research Affiliates at [94]; RPL Central at [100]. Consequently, a business method or scheme is not, per se, a proper subject for letters patent: RPL Central at [96]. Nor are abstract ideas, mere intellectual information or mere directions for use patentable: Research Affiliates at [101]; RPL Central at [100].
17.5       A computerised business method or scheme can, in some cases, be patentable. However, ‘[w]here the claimed invention is to a computerised business method, the invention must lie in that computerisation’: RPL Central at [96] (emphasis added). This requires ‘some ingenuity in the way in which the computer is used’: RPL Central at [104]. It is not a patentable invention ‘to simply “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]. In other words, if the ingenuity lies in the business method or scheme alone, the invention will not be patentable despite the computer-implementation.
17.6       Thus, 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: RPL Central at [96]. Contrary to [the applicant’s submissions at [49]], this is a binary distinction: the invention is either an unpatentable scheme or plan, or it is a patentable improvement in computer technology. In conducting the analysis, it is useful to:
17.6.1      ascertain whether the contribution to the claimed invention is technical in nature: RPL Central at [99], Research Affiliates at [114];
17.6.2      consider whether the invention solves a ‘technical’ problem within the computer or outside the computer: RPL Central at [99], Research Affiliates at [103];
17.6.3      consider whether the invention results in an improvement in the functioning of the computer, irrespective of the data being processed: RPL Central at [99], Research Affiliates at [118];
17.6.4      consider whether the invention requires merely ‘generic computer implementation’, as distinct from steps which are ‘foreign’ to the normal use of computers: RPL Central at [99], [102]; Research Affiliates at [101]; and
17.6.5      consider whether the computer is merely the intermediary, configured to carry out the method using program code for performing the method, but adding nothing to the substance of the idea: RPL Central at [99].”

Similarly, the delegate in Aristocrat Technologies Australia Pty Limited [2016] APO 49 (Aristocrat ’16) at [35] set out a non-exhaustive list of relevant “touch stones” for considering patentability of inventions involving computer implementation arising from the Full Federal Court decisions of Commissioner of Patents v RPL Central Pty Ltd [2015] FCAFC 177; (2015) 328 ALR 458 (RPL Central) and Research Affiliates LLC v Commissioner of Patents [2014] FCAFC 150; (2014) 227 FCR 378 (Research Affiliates):
“I conclude that it is relevant to consider a range of matters. Without seeking to be exhaustive, these include:
a)there must be more than an abstract idea, mere scheme or mere intellectual information;
b)is the contribution of the claimed invention technical in nature;
c)does the invention solve a technical problem within the computer or outside the computer;
d)does the invention result in improvement in the functioning of the computer, irrespective of the data being processed;
e)does the application of the method produce a practical and useful result;
f)can it be broadly described as an improvement in computer technology;
g)does the method merely require generic computer implementation;
h)is the computer merely an intermediary or tool for performing the method while adding nothing of substance to the idea;
i)is there ingenuity in the way in which the computer is utilised;
j)does the invention involve steps that are foreign to the normal use of computers; and
k)does the invention lie in the generation, presentation or arrangement of intellectual information.”
The Full Federal Court decision in Commissionerof Patents v RoktPte Ltd (Rokt 2) [2020] FCAFC 86 confirmed and applied these principles. It appears a sensible approach, consistent with the above principles for considering patentability, to consider whether the invention constitutes a technical solution and/or solves a technical problem.
Following the Rokt 2 decision, the Full Court has found adversely for patentability for two further inventions. In the first decision, Commissioner of Patents v Aristocrat Technologies Pty Limited (Aristocrat ’21) [2021] FCAFC 202, it was found that a game implemented on an electronic gaming machine was not patentable. After first identifying the claimed invention as involving a mere game which was unpatentable, the Full Court asked whether the claimed invention was a computer-implemented invention before determining that for the claims to be patentable, there needed to be “an advance in computer technology”. The same considerations were applied by Perram J in Repipe Pty Ltd v Commissioner of Patents [2021] FCAFC 223, where it was also noted by Nicholas J with reference to RPL Central that the claimed method did not “involve any improvement in computer technology or any unusual or unconventional technical method or effect capable of giving rise to patentable subject matter”.
EXAMINER’S OBJECTION
In his latest report the examiner maintains an objection under the ground of manner of manufacture along the following lines:
“It is clear from reading the specification as a whole, the present invention solves a problem that is directed to answering business queries (KPI determination) based on incident data received, analysed and processed [para 0001a]. This is not a problem of technical nature. The computer system defined is merely being used to implement data analysis for the purpose of understanding business requirements and presenting optimised information for business improvement (incident management). The problem is in the art of information analysis and business management. It does not stem from deficiencies in the implementation of the business rules by the computer, but instead are aspects of business analytics. There is no technical teaching within the specification that appears to go beyond mere automation of the incident management in an organisation. The computer is merely performing generic functions in analysing different types of data and presenting analysed data as outputs for business management purposes. Therefore, the claimed invention as a matter of substance, does not define an improvement in computer technology. Instead, the substance of the invention amounts to a scheme for business management through the determination of KPIs of incidents. I note your assertion that the ability to automatically and dynamically identify and re-prioritize incidents and therefore minimize the impact of same on organizational operations is clearly a technical problem. However, this only implies the process of automating business decision making within an organisation. This is not a problem of technical nature nor does the claim define a technical solution to implement the method. It is an abstract idea that relies on the generic ability of a computer to automatically assess whether a condition has been met and execute an action following this determination. The substance of the invention amounts to a scheme for conducting a business.
With regard to your assertions on Jagwood Pty Ltd [2020] APO 38 (Jagwood), I disagree with your analysis that the Hearing Officer concluded that the Jagwood claims comprised patent-eligible subject matter despite the use of a generic computer. However, based on the case law, the Hearing Officer concluded that the invention is a new use of computers and networks which results in a method for use in business, wherein the substance of the invention provides a technical solution. It was also stated that the use of an identifier (specifically a URI) to have the dual purpose of supplying both the location of a financial document and the payment reference in an electronic payment system, provides a technical solution to identified problems. Additionally, the Hearing Officer indicated that although the invention involves the use of generic computing device, this is only part an aspect of the invention [82]. Therefore, unlike Jagwood, I do not agree that the present invention produces the similar effect produced by the case law cited.
With regard to eBay Inc. [2020] APO 49 (eBay), I maintain my assertions that there is a clear distinction between the presently claimed invention and eBay where the substance of the invention in eBay resides in the combination of integers that solve the technical problem of determining not only location and time, but also crowd congestion at a venue and at specific times during the event, determines changes to a route to reach a desired point of interest. However, the presently claimed arrangement or method is simply an abstract idea or scheme that is put into a computer, which when implemented on a general-purpose computer, might result in a more convenient way to assess the impacts incidents have on the KPIs of an organisation. It is solely based on business-driven data analysis and processing, no specific technical limitation is identified as being overcome by this assessment. The claimed substance of eBay was considered to provide a material effect of congestion detection. For example, the Hearing Officer stated that [44] “it provides a technical solution to the technical and physical problem of processing location, time, and congestion data to determine an alternative physical and practical route, that then by necessity, is presented to the user.”. Hence, the invention in eBay enables a user to navigate their way and arrive at a point of interest in a less congested and more timely and efficient manner. This a practical solution and is addressing a real and physical problem which produces a practical and useful result that is not related to a business process or business rules. The process of assisting people to move around a crowded venue to arrive at their point of interest in an efficient manner is a physical phenomenon. Unlike the patented arrangement discussed in eBay, the present invention is only an implementation of business rules for assistance in making business decisions. Hence, the outcome of the application is not a physical phenomenon.”
APPLICANT’S SUBMISSIONS
The applicant provides a summary of their submissions in the following terms:
·The Case Examiner has impermissibly dismissed various features in the claims during an assessment of the claimed substance on the basis that such features were “well known” at the relevant priority date.
·The Case Examiner has arrived at an incorrect conclusion that the claimed invention is directed to a “scheme” solely on the basis that the claims involve a “generic computer” contradicting, or ignoring, the guidance in International Business Machines v Commissioner of Patents (1991) 22 IPR 417 (IBM), CCOM Pty Ltd v Jiejing [1994] FCA 1168 (CCOM), eBay [2020] APO 49 (eBay), Jagwood Pty Ltd [2020] APO 30 (Jagwood), Apple Inc. [2021] APO 18 (Apple), and Advanced New Technologies Co., Ltd. [2021] APO 29 (Advanced New Technologies).
·The Case Examiner has neglected to consider the technical effect and the practical and useful result arising from the claimed combination of technical features when assessing the patent subject matter eligibility of the claimed invention, contradicting, or ignoring, eBay and Jagwood.
This summary reflects submissions initially filed on 25 October 2021. Following the decision of the Full Court of the Federal Court in Aristocrat ‘21 issued on 19 November 2021, time was provided to the applicant to file any further submissions. These were duly filed on 28 January 2022. These subsequent submissions firstly touch upon the aspects of the majority decision which note that a loose use of expressions such as “generic computer technology” can be unhelpful. I deal with this issue below by simply considering the “genericness” of implementation as a relevant factor to balance. Secondly the applicant refers to the two-step test proposed by the majority. I address this below when considering the nature of the ingenuity of the claimed invention. The remainder of the subsequent submissions appear to mirror the themes of the earlier submissions.
CONSIDERATION
Does the invention solve a technical problem within the computer or outside the computer?
As can be seen from my discussion above, the specification is rather elusive in terms of the task of identifying problems that are solved by the claimed invention. The claim provides automated incident management in some uniquely dynamic way and manages certain actions within an organisation to address such incidents in a prioritised and resource optimised manner. Resources that may be optimised include general effort and cost applied to addressing organisational incidents. The specification identifies that it is “technically” challenging to perform the following tasks but does not expand upon what these specific “technical” challenges may be.
·Classifying incidents based on key fields in the data
·Feeding a backlog of incidents and generating a list of incidents that need to be prioritised
·Applying tokenisation and a knowledge graph to identify organisational operations and KPIs for a given set of incidents to determine metrics with respect to which incident has an impact on a KPI and how the incidents should be prioritised in accordance with their KPI impact.
In this context it appears to me that the specification is using the word “technical” in a rather loose sense potentially with respect to a perceived complexity rather than technicality, and clearly not in a manner that is in accordance with the context given by the Courts, i.e., there being physical or material problems that are solved by the present invention. One might even go so far as to consider this complexity as some kind of “intellectual” complexity. Regardless, no problem or difficulty in terms of computer technology is identified, and I do not see any physical or material problems outside of computer technology that are addressed. At best it appears that the problem could be articulated as the search for an effective/efficient algorithmic data analysis process that can analyse incident data such that incidents with respect to an organisation can be managed, and remedial actions controlled. Quite clearly, this is not a technical problem either inside or outside a computer.
The lack of a technical problem being addressed by the claimed invention is reflected in the applicant’s submissions. The applicant points to Patent Office decisions in Jagwood and Advanced New Technologies where the delegates found there to be patentable subject matter absent the existence of a technical problem. The applicant notes that these decisions confirm a long-established principle that the provision of a technical solution as a matter of substance to a non-technical problem, constitutes patentable subject matter.
I have no difficulty accepting the proposition that it is not necessary to identify a technical problem for a claim to be directed towards a manner of manufacture. After all, the considerations of patentability identified in the case law pose the question for patentability even more generally by asking whether the contribution to the claimed invention is technical in nature. What is important to note is that the considerations for patentability involve the balancing of several factors, one of which is the nature of the problem, but others discussed below focus more on the nature of the solution. Nonetheless it is clear at this point, and does not appear to be in contention, that the claimed invention does not solve a technical problem inside or outside a computer.

Does the invention result in improvement in the functioning of the computer, irrespective of the data being processed? Can the invention be broadly described as an improvement in computer technology?
In the context of considering whether there is an improvement in the functioning of a computer or more generally, an improvement in computer technology the applicant makes significant reference to the decision in CCOM. They submit that the present invention should be considered “improved” in the same way that the invention in CCOM was found patentable as a result of an improved data structure albeit on a generic computing device. They argue that the invention in CCOM constituted an “improved computer” with the practical and useful result of improved finding of Chinese language characters.
The claimed invention clearly involves the potential for a single computer to perform a range of functions. The operation of the computer and associated processor(s) in claim 1 can be functionally summarised as follows:
·     Receive incident data (to ascertain incident data for a specified time duration)
·     Pre-process incident data and use deep learning (to remove certain features, classify data, and extract certain features)
·     Analyse incident data by engineering features (to determine the organisation associated with the pre-processed data)
·     Generate a classification model using a first set of data to train a model and a second set of data to test the model using iterative processes
·     Generate a corpus using ontology to map relationships between parameters (and use the corpus to determine organisational KPIs for incidents)
·     Generate an output that includes an organisational operation impacted by an incident and a specified KPI (by obtaining new incident data associated with further organisational operations, determining relevant KPIs, and using the corpus and classification model)
·     Determine and modify the priority of incidents of the further plurality of incidents
·     Control, based on the output, some operation of a system associated with the identified organisation
Firstly, nothing in these italicised functions appears to be an improvement to how a computer operates as a device/tool. Data is received before it is processed and analysed. Data received is used in training a model and creating a corpus which are subsequently used with further received incident data, to generate an output. This output identifies an organizational operation impacted by an incident of a further plurality of incidents associated with further organizational operations of the organization, and a specified organizational key performance indicator associated with the organizational operation. The level at which the features are described and claimed appears to simply lie in data receipt and processing of particular information to generate particular outputs. Functionally, the computer receives data, processes it, analyses it, creates a “model” and a “corpus”, and creates an output used to perform some kind of control. I cannot possibly see an improved functioning of a computer or improved computer technology in the claims.
Turning to the CCOM decision, Cooper J appears to have found that the overall outcome was an efficient way of retrieving Chinese characters stating:
“The NRDC Case (102 CLR at 275-277) requires a mode or manner of achieving an end result which is an artificially created state of affairs of utility in the field of economic endeavour. In the present case, a relevant field of economic endeavour is the use of word processing to assemble text in Chinese language characters. The end result achieved is the retrieval of graphic representations of desired characters, for assembly of text. The mode or manner of obtaining this, which provides particular utility in achieving the end result, is the storage of data as to Chinese characters analysed by stroke-type categories, for search including ‘flagging’ (and ‘unflagging’) and selection by reference thereto.”
Present in the CCOM invention is a computer system with a keyboard wherein an improved data structure is provided to facilitate easier/improved finding of Chinese characters using keystrokes. The finding of patentability in the CCOM case appears to stem primarily from patentable utility lying in the end result, being a word processing tool involving a computer and keyboard, that provides for more effective retrieval of characters. To this extent, one might suggest that there is an improvement to Chinese character retrieval technology in CCOM in the improved capability/effectiveness of the keyboard function, or an improved user interface allowing more efficient inputting of Chinese characters. I do not see such an improvement could be present in the claimed invention. The computer functions of the claimed invention are merely processor driven steps involving receipt of data, data processing, data output and operational control.
It is useful again to refer to FIG. 1 and an extract from the specification discussed above at [6] stating that any combination of hardware and programming to implement the functionalities of the respective elements may be used to implement the invention. There is clearly no improvement or advance in computer technology, and the particular “technical” or “physical” computer functionality chosen to implement the claimed method is clearly not part of the alleged invention.
At this point it is also useful to address the applicant’s submissions that focus upon the “combination of technical features”. My discussion of the computing device used to perform the claimed invention and the summary of relevant functional features at [32] makes clear that there is nothing of substance to the idea that present in the claim is some specific “combination” of “technical” features. All the features described relate to functional data processing steps that are defined by the data that they process. I simply cannot see anything substantive that can be identified as such a combination. The present invention as a physical machine/device is simply a standard computer. The standard computer is performing routine computer functions.
The applicant also discussed the application of a two-step test proposed by the majority in Aristocrat ’21. Middleton and Perram JJ considered that useful in the case before them were the following questions:
a) Is the invention claimed a computer-implemented invention?
b) If so, can the invention claimed broadly be described as an advance in computer technology?

It appears clear that the present invention can be characterised as a computer-implemented invention. As noted above at paragraph 30, the claimed invention involves a series of mere processing steps that manage and modify information and produce an output. As I discuss below, I see no technical effect, or material or tangible advantage arising from the invention. The method steps of the invention instead appear to provide for a logistical scheme which is otherwise unpatentable. Without an advance to computer technology, the scheme cannot be transformed into patentable subject matter. I see no improvement to computer technology and no improvement to the functioning of a computer.
Does the invention use generic computer technology?
Following the discussion above it is clear that present in the claimed invention is a standard computer performing routine technical computer functions related to mere processing of data. To this extent, the invention uses generic computer technology.
The applicant points out in their submissions that the Case Examiner has arrived at an incorrect conclusion that the claimed invention is directed to a “scheme’ solely on the basis that the claims involve a “generic computer”. I accept that it is quite true that one cannot conclude that there is a lack of patentability simply because the claim involves merely generic computer implementation. As I have stressed throughout this decision, it is necessary to consider a variety of factors. On this point I note looking at the examiner’s objection, that he has not simply arrived at a conclusion considering this factor alone but has also at least clearly considered the nature of the problem.
The applicant also argues that the Case Examiner has impermissibly dismissed various features in the claims during an assessment of the claimed substance on the basis that such features were “well known”. In reviewing the matter, I cannot see what features would have been discounted from the claim by the examiner that could (in combination with the rest) provide any technical contribution to the claimed invention. Regardless, my consideration above considers the entirety of the claim in finding the claimed method to merely require generic computer implementation.
Are there any steps foreign to the normal use of computers? Is there ingenuity in the way in which the computer is utilised? Is the invention technological or business innovation?
The question as to whether an invention involves steps that are foreign to the normal use of computers arises from the decision in IBM. In that case, the use of a mathematical process in a computer to produce an improved (i.e., more accurate) curve image was held to be patentable. Specifically, Burchett J found:
“Although there was nothing new about the mathematics of the invention what was new was the application of the selected mathematical methods to computer, and, in particular, to the production of the desired curve by the computer. This involved steps which were foreign to the normal use of computers and, for that reason, were inventive. A method of producing that by computer, which is novel and inventive, is entitled to the protection of the patent laws.”
The use of floating-point arithmetic was common for processing such algorithms for generating curves. This invention however, claimed that calculations were performed without the use of floating-point arithmetic, that is, using fixed point or “integer” arithmetic. At the time of the invention, it was new and non-obvious to perform such mathematical algorithms in a computer, using something other than floating point arithmetic. This integer arithmetic, as described in the specification, comprised a particular way of performing calculations using components in a computer that changed the way a computer normally worked in the relevant context. It followed that the claim was directed to a process containing steps that were foreign to the normal use of computers. To this extent, the claim was not patentable simply because it drew a curve on a computer and that this result was commercially useful.
Reflecting on the discussion above, it remains clear that there are no steps in the claimed invention that are defined in a way that could be considered foreign to the normal use of computers. As I stated above, the computer functions of the claimed invention are merely processor driven steps involving receipt of data, data processing, data output and operational control. None of these steps are performed in a way analogous to the use of integer arithmetic in the computer hardware as defined in IBM. In IBM, the ingenuity lay in the use of integer arithmetic in the computer for the purpose of generating a curve. There, the invention essentially lay in the way the computer was functioning and was thus technological innovation. In the present case, the problem addressed by the claimed invention, the nature of the functions performed by the computer and the depiction of the invention in FIG. 1 combine to make clear that the present invention is business innovation.
Is the computer merely an intermediary or tool for performing the method while adding nothing of substance to the idea?
The applicant argues that the claimed invention is not one in which the computer is merely an intermediary or tool for performing the method. They point to RPL Central where the Full Court states at [109]:
“Turning to the characterisation of the invention in the Patent Application, the key aspect relied upon by RPL Central is the conversion of personalised information into questions, including asking for relevant attachments. The Commissioner says that this is simply an easily programmed conversion of information to a question by prepending relevant words. The computer is, in effect, operating as an intermediary in the user’s quest for an evaluation of his or her competency for a particular course and entitlement to obtain a qualification without participating in that course. However, the computer does not evaluate the user’s input to provide the answer. It is not functioning in the nature of an adviser or an artificial intelligence. Rather, the programming allows for a series of prepared words to be prepended to the user information, to turn the statement into a question.”
With this in mind, the applicant suggests that the present invention involves:
“…the technical features of utilizing deep learning to extract features from the incident data, … analyzing, by performing feature engineering by the at least one hardware processor, the preprocessed incident data to determine the organization associated with the preprocessed incident data, … and training a machine learning classification model and testing same based on the analyzed preprocessed incident data, the computer is effectively functioning in the nature of an artificial intelligence advisor or at least evaluates input and is not merely an intermediary.”
Firstly, while there are fundamentally technical events inevitably occurring during the processing of data (involving memory states of the computer), as discussed above, there is no ingenuity of a technical nature. To the extent that RPL Central discusses the fact that the relevant invention is not functioning in the nature of an advisor or an artificial intelligence, I do not see that decision as making some definitive statement that things which can be considered broadly as “advisors or an artificial intelligence” are necessarily patentable. While there may well be technical improvements to computer function that will provide for an invention that will be considered an improvement to artificial intelligence computer technology as such, or even an advisory function that involves some technically improved evaluation of user inputs, the present invention clearly does not involve such improvements. Similarly to RPL Central, I do not consider the invention to lie in any improvement to programming technology, physical steps of data analysis, or artificial intelligence computer technology. Instead, the invention is appropriately characterised as a mere automation, using well known computer functions, of a scheme. The computer is clearly an intermediary.
Does the application of the method produce a practical and useful result? Does the invention produce a technical effect?
The applicant argues that the combination of feature gives rise to a patentable effect. They point to the claims and specification at [0045] which notes that (applicant’s emphasis):
An organizational controller 138 that is executed by at least one hardware processor (e.g., the hardware processor 1702 of Figure 17, and/or the hardware processor 1904 of Figure 19) may control, based on the output 136, an operation of a system 140 associated with the identified organization 110. For example, with respect to management of field request as disclosed herein, some selected request for field service transactions may be of importance to an organization (e.g., request for certain emergency responses related to fixing of existing connections in the utilities industry). Incidents related to such requests may be missed within a relatively large number of incidents that are handled on a regular basis. In this regard, the output 136 that identifies an organizational operation impacted by an incident may provide for the identification of the urgency of the exact service requested. The prioritization may be achieved by reading the description of the emergency request, noting key words that highlight the necessity to process such field force requests quickly, and finally reprioritizing such incidents to modify an existing connection in the utilities industry.
While clearly the claimed and described invention envisages the generation of an output for controlling some operation there is no specific detail as to the nature of this control. The use of the word “system” (i.e. a system 140) also appears quite broad. At this level, the claimed feature simply represents the abstract idea to control some element of organisational operation in some generic manner. While this may be practical and useful within the everyday meaning of this phrase, I cannot see it as being technical in any way. The result is simply a computerised organisational instruction to perform some act to fix some problem that has arisen with respect to the organisation. This result appears purely logistical and not, as a matter of substance, material or tangible in the manner required by Research Affiliates at [114]. Absent any contribution to the claimed invention of a technical nature, the general practicality and usefully of an invention would appear insufficient to confer patentability.
Does the invention lie in the generation, presentation, or arrangement of intellectual information?
The applicant argues that the claimed invention does more than merely present information, noting that it provides automatic control of the operation of a system of an identified organisation based on a modified priority of an incident. I agree with the applicant that this is true. The invention does not simply generate, present, and arrange information. It also gathers information and uses it to control something. The problem though is that the “something” which is controlled is entirely arbitrary and there is nothing said about how this control is performed as some kind of technical exercise. It is the case that the computer “control” merely involves the generic computer automation of some abstract business or administrative step.
Balancing the considerations
Turning to the factors above, while the invention appears to have some practicality and usefulness, and is not simply a generation and arrangement of information, none of the factors suggest an invention of a technical nature. I consider the substance of the invention does not lie in any technical element of computer implementation but in a mere business scheme for analysing organisational parameters to proritise and control actions within an organisation. This substance is well reflected as a schematic idea for a program or programs that is depicted in FIG. 1. It was noted in Encompass Corporation Pty Ltd v InfoTrack Pty Ltd [2019] FCAFC 161 at [101] that the invention there could be viewed as “an idea for a computer program, it being left … to the user to carry out that idea in an electronic processing device”. The same can be said of the presently claimed invention.
Therefore, I find that claim 1 is not for a manner of manufacture. Independent claims 4 and 7 fail for the same reasons, as do the dependent claims which add features such as the specific time durations for collection of different data being different, and the increasing of priority of incidents. These claims merely define additional elements of the business scheme. I have also reviewed the specification and it is not apparent to me that there is any content that could overcome a finding as to a lack of manner of manufacture.
Recent Patent Office Decisions
The applicant mentions eBay, Jagwood, Apple, and Advanced New Technologies in their submissions. Briefly, each of these decisions found patentability in the presence of the delegate identifying the relevant invention as addressing a technical problem or providing a technical solution in addition to providing for a practical and useful result. As noted above, the present invention is not considered as solving a technical problem or providing a technical solution. In short, it is not considered technical in nature. While there may be a practicality and usefulness to the invention, this is insufficient alone to confer patentability.
CONCLUSION
I conclude that the claimed invention, as a matter of substance is not for a manner of manufacture. 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 formed the view that no allowable amendment could result in claiming a patentable invention. It follows that the Application should be refused.
Dr N. R. Madsen
Deputy Commissioner of Patents