Arbitron v Telecontrol Aktiengesellschaft

[2010] FCA 302

FEDERAL COURT OF AUSTRALIA

Arbitron v Telecontrol Aktiengesellschaft [2010] FCA 302

Citation:

Arbitron v Telecontrol Aktiengesellschaft [2010] FCA 302

Parties:

ARBITRON INC v TELECONTROL AKTIENGESELLSCHAFT and AC NIELSEN (HOLDINGS) PTY LTD (ACN 008 417 874)

File number:

NSD 627 of 2005

Judge:

EMMETT J

Date of judgment:

31 March 2010

Catchwords:

PATENTS – patent for a “method and system for recognition of broadcast segments” – construction of claims – whether claims should be construed narrowly by reference to body of specification – validity – divisional patent – whether claims are fairly based on specification – novelty –whether claims are anticipated by patents for a “speech signal processing method” or “vocoder system of a kind for transmitting a voice signal from a transmitter to a receiver” – inventive step – whether claims are obvious

PATENTS – double claiming – whether invention claimed is the same as the invention claimed in grandparent patent as per s 64(2) of the Patents Act 1990 (Cth) – whether contravention of that provision is a ground for revocation under s 138 of the Patents Act 1990 (Cth) – whether patentee not entitled to the Patent as per s 138 – whether contravention is a basis upon which the Court may make an order removing the patent from the Register of Patents under s 192 of the Patents Act 1990 (Cth) – whether entry of patent in Register was made without sufficient cause or whether entry is wrongly existing

PATENTS – infringement – purportedly infringing device is a system for audience research where participants wear wrist devices that receive signal broadcast through the air – whether impugned device infringes integers of patent 

Legislation:

Administrative Decisions (Judicial Review) Act 1977 (Cth)
Judiciary Act 1903 (Cth) s 39B
Patents Act 1990 (Cth) ss 7(2), 13, 14, 18(1), 61, 64(2), 79B, 79C, 88, 89, 101B(6), 120(1), 138(3)(a), 186, 187, 188, 192(1)
Real Property Act 1900 (NSW)

Registration of Deeds Act 1897 (NSW)

Patent Cooperation Treaty (Washington, 19 June 1970)

Cases cited:

H Lundbeck A/S v Alphapharm Pty Ltd (2009) 177 FCR 151
Fresenius Medical Care Australia Pty Ltd v Gambro Pty Ltd (2005) 224 ALR 168
Kimberly-Clark Australia Pty Ltd v Arico Trading International Pty Ltd (2001) 207 CLR 1
Kinabalu Investments Pty Ltd v Barron & Rawson Pty Ltd [2008] FCAFC 178
Lockwood Security Products Pty Ltd v Doric Products Pty Limited (2004) 217 CLR 274
Nikaro Holdings Pty Ltd v Martin Engineering Co (1990) 91 ALR 513
Rehm Pty Ltd v Websters Security Systems (International) Pty Ltd (1988) 81 ALR 79
Sartas No 1 v Koukourou & Partners Pty Ltd (1994) 30 IPR 479

Welch Perrin & Co Pty Ltd v Worrel (1961) 106 CLR 588

Dates of hearing:

9-17 March 2009

Date of last submissions:

24 April 2009

Place:

Sydney

Division:

GENERAL DIVISION

Category:

Catchwords

Number of paragraphs:

273

Counsel for the Applicant:

DK Catterns QC with SJ Goddard SC

Solicitor for the Applicant:

Spruson and Ferguson Lawyers

Counsel for the Respondents:

D Shavin QC with JR Baird SC

Solicitor for the Respondents:

Griffith Hack

Counsel for the Commissioner of Patents:

GC McGowan SC

Solicitor for the Commissioner of Patents:

Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 627 of 2005

BETWEEN:

ARBITRON INC
Applicant

AND:

TELECONTROL AKTIENGESELLSCHAFT
First Respondent

AC NIELSEN (HOLDINGS) PTY LTD (ACN 008 417 874)
Second Respondent

JUDGE:	EMMETT J
DATE OF ORDER:	31 MARCH 2010
WHERE MADE:	SYDNEY

THE COURT REVOKES:

1.Orders 2, 3 and 4 made on 20 February 2009 in relation to Australian Patent Number 678163.

THE COURT ORDERS THAT:

2.The application be dismissed.

3.The first respondent’s cross-claim be dismissed.

4.The second respondent’s cross-claim be dismissed.

5.The question of costs be reserved for further argument on 12 April 2010.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 627 of 2005

BETWEEN:

ARBITRON INC
Applicant

AND:

TELECONTROL AKTIENGESELLSCHAFT
First Respondent

AC NIELSEN (HOLDINGS) PTY LTD (ACN 008 417 874)
Second Respondent

JUDGE:	EMMETT J
DATE:	31 MARCH 2010
PLACE:	SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .	[1]
THE EVIDENCE........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...	[9]
HISTORY OF THE GRANT OF THE PATENT........ ........ ........ ........ ........ ........ ......	[13]
SOME COMMON GENERAL KNOWLEDGE........ ........ ........ ........ ........ ........ ........	[22]
THE SPECIFICATION........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........	[27]
Objects and Summary of the Claimed Invention........ ........ ........ ........ ........ ........ ...	[31]
The Drawings of the Specification........ ........ ........ ........ ........ ........ ........ ........ ........ ...	[36]
Audio Signature Generation........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .....	[37]
THE CLAIMS OF THE PATENT........ ........ ........ ........ ........ ........ ........ ........ ........ .......	[55]
THE TELECONTROL SYSTEM AND DEVICE........ ........ ........ ........ ........ ........ .....	[65]
CONSTRUCTION OF THE CLAIMS OF THE PATENT........ ........ ........ ........ ......	[75]
Relevant Principles of Construction........ ........ ........ ........ ........ ........ ........ ........ ........	[76]
Telecontrol’s Contentions........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .	[78]
Application of the Principles........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....	[85]
VALIDITY OF THE PATENT........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....	[91]
Fair Basis........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....	[93]
Novelty........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........	[115]
The Grandparent Patent........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .	[118]
The Seiko Patent  and the TRT Patent........ ........ ........ ........ ........ ........ ........ ........ ..	[120]
The Claims of the Patent are Novel........ ........ ........ ........ ........ ........ ........ ........ .......	[130]
Inventive Step........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .....	[135]
Double Claiming / Whether Arbitron Entitled to the Patent........ ........ ........ ........	[140]
Contravention of Section 64(2)........ ........ ........ ........ ........ ........ ........ ........ ........ ......	[142]
Revocation........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .......	[160]
Rectification of the Register........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...	[166]
Conclusion as to Validity........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...	[178]
THE ALLEGED INFRINGEMENT........ ........ ........ ........ ........ ........ ........ ........ ........ ...	[179]
WHETHER TELECONTROL INFRINGES........ ........ ........ ........ ........ ........ ........ .....	[193]
Integer A........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .....	[209]
Integer B........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .....	[219]
Integer C........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .....	[232]
Differencing and Comparing........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .	[233]
Pre-formed Groups........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .	[247]
The Conversion Operation........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .....	[253]
Integer D........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .....	[256]
Claims 4 to 10........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .....	[266]
Conclusion as to Infringement........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..	[269]
CONCLUSION........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ......	[273]
SCHEDULE 1: THE DRAWINGS OF THE PATENT........ ........ ........ ........ ........ .....
SCHEDULE 2: DESCRIPTION OF THE DRAWINGS........ ........ ........ ........ ........ ...
SCHEDULE 3: THE CLAIMS OF THE PATENT........ ........ ........ ........ ........ ........ ...
SCHEDULE 4: REPRESENTATION OF THE TELECONTROL SYSTEM........
SCHEDULE 5: BLOCK DIAGRAM OF CLAIM 1 OF THE PATENT........ ........ .
SCHEDULE 6: BLOCK DIAGRAM OF SEIKO PATENT........ ........ ........ ........ .....
SCHEDULE 7: BLOCK DIAGRAM OF TRT PATENT........ ........ ........ ........ ........ ..

INTRODUCTION

1. This proceeding is concerned with the validity of Australian Patent No. 747044 (the Patent) and alleged infringement of the Patent.  The claimed invention of the Patent is a “method and system for recognition of broadcast segments”.  It relates to the automatic recognition of widely disseminated audio signals such as television and radio broadcasts.  The applicant, Arbitron Inc (Arbitron), is the patentee of the Patent under the Patents Act 1990 (Cth) (the Act).

2. Arbitron asserts that the first respondent, Telecontrol Aktiengesellschaft (Telecontrol), has infringed the Patent by sale or supply or other disposition of devices variously known as Watch Meter, Media Watch, Radiocontrol or Media Control.  It says that Telecontrol does so by the exploitation of its devices in Australia and its conduct in authorising the second respondent, AC Nielsen (Holdings) Pty Ltd (Nielsen) to exploit its devices.  Nielsen has not participated in the hearing. 

3. The idea behind the claimed invention of the Patent is to enable an interested person to determine whether a particular piece of audio material has been broadcast during a particular period of time through a particular audio channel.  The essence of the claimed invention appears to be the extraction, from the material of interest, data that uniquely characterises or identifies that material.  That data is described in the Patent as a signature.  The broadcast material is then monitored in order to ascertain whether the broadcast material contains the data that constitutes that signature.  The object of the claimed invention is to avoid the necessity of having someone listen to the whole of the broadcast material, either live or in reproduction after it is recorded, to determine whether the broadcast material from a particular audio channel includes the material of interest. 

4. The object of the Telecontrol device is not to determine what has been broadcast by a particular source of transmission.  Rather, it is to determine which of all sources of transmission have been listened to by a particular class of individuals.  That is to say, its primary object is audience measurement or survey.  That object could be achieved by surveyed individuals recording complete details of all of the material listened to by them.  That could be done by recording the whole of the material or by each surveyed individual making a note of what the individual listens to.  The object of the Telecontrol system is to obviate the cumbersomeness of those kinds of steps.  An individual who participates in the Telecontrol system, instead of recording or making a note of everything listened to, simply wears a wrist device containing a microphone that is capable of recording everything that can be heard by the wearer.  The device records only sufficient data to determine whether the material heard is the same as one of the sources of interest. 

5. Arbitron asserts that Telecontrol has infringed and threatens to infringe each of Claims 1, 5, 6 and 7 of the Patent, which are method claims, and each of claims 4, 8, 9 and 10 of the Patent, which are system or product claims.  Telecontrol denies that the sale, supply or other disposal of its devices infringes the Patent.  There is no issue in the proceeding as to whether Telecontrol has exploited its devices or as to whether Telecontrol threatens and intends to continue so doing.  The only issue on infringement is whether the Telecontrol devices possess all of the integers of the Claims of the Patent.  Telecontrol accepts that, if the Court concludes that a valid Claim of the Patent is infringed, relief should be granted. 

6. However, Telecontrol also asserts that each of the Claims of the Patent is invalid.  By its cross-claim, Telecontrol claims revocation of the Patent on the following grounds:

   ·The Claims of the Patent are not fairly based on the matter described in the complete specification of the Patent (the Specification) as required by s 40(3) of the Act:- s 138(3)(f).

   ·The claimed invention of the Patent is not a patentable invention in that it is not novel within s 7(1) of the Act:- s 138(3)(b).

   ·The claimed invention of the Patent is not a patentable invention in that it does not involve an inventive step within s 7(2) of the Act:- s 38(3)(b).

   ·Arbitron is not entitled to the Patent:- s 138(3)(a).

   Alternatively to the last ground, Telecontrol seeks rectification of the Register of Patents (the Register) pursuant to s 192 of the Act on the basis that, by the operation of s 64(2) of the Act, the entry of the Patent in the Register was made without sufficient cause or is wrongly existing. The further amended particulars of invalidity filed with the cross-claim also relied on failure to comply with s 40(2). That ground was not ultimately pressed.

7. Telecontrol formulated six questions for determination in the proceeding.  Arbitron did not dispute that formulation.  The questions are as follows:

   (1)Whether the Claims of the Patent, fairly understood, incorporate either express definitions from the Specification or implicit definitions and limitations from disclosure in the body of the Specification.

   (2)Whether there is a sufficient disclosure within the relevant parts of the body of the Specification to support the Claims, properly construed, if they are not subject to the limitations referred to in question (1).

   (3)Whether, if the Claims of the Patent are construed as Arbitron contends they should be, they were anticipated by publication of the following patents in the Patent Office Library in Canberra on the dates specified:

   ·Australian Patent 678163: 29 November 1993 (the Grandparent Patent);

   ·European Patent 385799: 6 September 1996 (the Seiko Patent);

   ·United Kingdom Patent 1456103: 22 March 1977 (the TRT Patent).

   (4)Whether the claimed invention of the Patent involved an inventive step.

   (5)Whether the Patent was granted contrary to s 64(2) of the Act, with the consequence either that Arbitron is not entitled to the Patent or that the Register ought to be rectified by removing the entry of the Patent from the Register.

   (6)Whether Telecontrol’s devices infringe any valid Claims of the Patent, properly construed. 

8. Before dealing with the issues in the proceeding, it is necessary to say something about the history of the Patent.  It will then be convenient to say something about the Specification and the Claims of the Patent.  I shall first say something about the evidence. 

   THE EVIDENCE

9. The evidence in the proceeding was given primarily by affidavit and by tender of documents.  Arbitron relied upon the evidence of Mr David Bull, the managing director of BCS Technologies Group Pty Limited.  Mr Bull has electrical trade and industrial electronics certificates from Hornsby Technical College, a Bachelor of Science (Comp and Elec) and Master of Science (Research) from Macquarie University.  The topic of Mr Bull’s thesis for his Master’s research was the optimal design of speech compression predictors, which are able to model human speech allowing high data compression rates for digital storage and transmission.  Mr Bull has provided engineering consultancy services since June 1989 to a variety of businesses in Australia, particularly in the area of digital signal processing, which is a branch of electrical engineering.  Mr Bull was cross-examined extensively and was prepared to make concessions where appropriate in the course of cross-examination.  I consider that he gave evidence fairly and frankly.  However, Telecontrol contended that little weight can safely be placed on Mr Bull’s evidence.  Ultimately, I do not consider that any issue depends upon the credibility of Mr Bull. 

10. Telecontrol relied on affidavits sworn by Dr Khok Khee Pang, who unfortunately died shortly before he was to give oral evidence.  Accordingly, his affidavit evidence was not tested by cross-examination.  Dr Pang graduated as Bachelor of Engineering with Honours from the University of Melbourne in 1964 and was awarded the degree of Doctor of Philosophy by Monash University in 1968.  Dr Pang was reader in the Department of Electrical Engineering at Monash University from 1985 until 2006.  Since June 1999, Dr Pang held the position of Deputy Director of Research with the Centre for Telecommunications and Information Engineering at Monash University.  That centre conducts leading edge telecommunications and information engineering research.

11. Telecontrol also relied upon affidavit evidence of Mr Andreas Koschak.  Since February 2002, Mr Koschak has been employed by Liechti AG (Liechti) as a system design engineer and subsequently as Head of Research and Development for product engineering.  Liechti is a related company of Telecontrol.  During his studies in systems engineering, majoring in electronics, Mr Koschak worked on signal processing technologies.  He has carried out development projects for video technology consisting of digital front-end filters for baseband video signals and for embedded code recognition.  During 2002 he began work on the RadioControl system, his task being to build a new version of the system.  That version was completed in 2004 and is in commercial use by Telecontrol.  In addition, Mr Koschak builds and designs software for wireless data transceivers, mostly in the short wave range. 

12. Mr Koschak’s affidavits were made in English.  However, German is his mother tongue.  Mr Koschak was cross-examined in English, although an interpreter was available.  Mr Koschak appeared to have no difficulty in comprehending and answering quite complex questions in English.  Mr Koschak was also prepared to make concessions where appropriate in the course of cross-examination.  I consider that he gave evidence fairly and frankly. 

    HISTORY OF THE GRANT OF THE PATENT

1. Australia is a party to the Patent Cooperation Treaty signed at Washington on 19 June 1970 (the Treaty).  Article 3(1) of the Treaty provides that applications for the protection of inventions in any of the contracting States may be filed as international applications under the Treaty.  An international application, as specified in the Treaty, must contain a request, a description, one or more claims, one or more drawings, where required, and an abstract.  Article 4(1)(ii) relevantly provides that the request must contain the designation of the contracting State or States in which protection for the invention is desired on the basis of the international application.  Article 11(1) of the Treaty provides that the national office with which an international application has been filed is to record, as the international filing date, the date of receipt of any international application.

2. Part 1 of Chapter 8 of the Act, which consists of ss 88 to 93 inclusive, deals with PCT applications. A PCT application is defined in the Dictionary in Schedule 1 to the Act as an international application filed under the Treaty, in which Australia is specified as a designated State under Article 4(1)(ii) of the Treaty and which has been given an international filing date under Article 11 of the Treaty. Section 88(1) provides that a PCT application must be treated as a complete application under the Act for a standard patent. The description, drawings and claims contained in a PCT application must be treated as a complete specification filed in respect of the application and the filing date of a PCT application is to be taken to be the date given to the international application under Article 11 of the Treaty.

3. Under s 89 of the Act, a PCT application is to be taken to comply with the prescribed requirements of the Act that relate to patent applications. However, a PCT application is not to be taken, merely because of s 88, to comply with any other requirements of the Act that apply to it. In particular, the description, drawings and claims contained in a PCT application are not to be taken, merely because of s 88, to comply with the requirements of s 40 of the Act.

4. On 30 April 1993, Application PCT/US93/04082 (the PCT Application) was filed at the United States Patent and Trade Marks Office, acting as a receiving office under the Treaty. The PCT Application specified Australia as a designated State. Accordingly, by the operation of s 88 of the Act, the PCT Application was treated as an Australian application and was allocated Australian patent application number 42260/93. On 29 November 1993, that application was open to public inspection in Australia. On 22 May 1997, application number 42260/93 was accepted and it became the Grandparent Patent.

5. Chapter 6A of the Act, which consists of ss 79B and 79C, deals with Divisional Applications. Under s 79B(1), if a complete application (the First Application) for a patent is made, the applicant may make a further complete application for a patent for an invention disclosed in the specification filed in respect of the First Application and falling within the scope of the claims of the specification of the First Application.

6. On 19 August 1997, an application was filed claiming divisional status in relation to the Grandparent Patent and was allocated application number 34272/97.  That application was published on 6 November 1997 and was accepted on 13 April 2000.  Application Number 34272/97 became Australian Patent Number 718227 (the Parent Patent). 

7. On 12 July 2000, an application was filed claiming divisional status in relation to the Parent Patent and was allocated application number 47161/00.  That application was published on 14 September 2000 and was accepted on 9 May 2002.  Application Number 47161/00 was republished as Australian Patent Number 747044, namely, the Patent.  On 6 May 2004, after the grant of the Patent, Application Number 47161/00 was amended and republished as Australian Patent Application Number 47161C/00.  That publication contains the Claims of the Patent as they presently stand. 

8. As at 22 May 1997, the date of acceptance of the Grandparent Patent, the claims of the Grandparent Patent included claims numbered 17 to 20 inclusive.  Pursuant to the PCT Application, those claims have a priority date of 30 April 1992.  The persons named as the inventors of the claimed invention of the Grandparent Patent are Michael D. Ellis, Stephen M. Dunn, Michael W. Fellinger, Fancy B. Younglove, David M. James, David L. Clifton and Richard S. Land.  They are also the persons named as the inventors of the claimed invention of the Patent. 

9. At the date of the acceptance of the Patent, 9 May 2002, the Claims of the Patent consisted of Claims 1 to 4, which have remained unchanged.  Claims 1 to 4 of the Patent are substantially the same as Claims 17 to 20 of the Grandparent Patent.  By the amendment allowed on 6 May 2004, Claims 5 to 10 were included in the Patent.  Claims 5 to 10 variously depend upon Claim 1 or Claim 4 of the Patent.

   SOME COMMON GENERAL KNOWLEDGE

10. By the priority date of the Grandparent Patent, April 1992, it had become practicable to digitise images and audio signals in data files of reasonable size.  At that time the most widely available and most practical technique that was suitable for recognition of content of a broadcast signal was audio signal characterisation.  Audio signal characterisation involves extracting, from an audio signal that is being processed, data that will be sufficient to enable it to be compared to reference data.  Apart from audio and video compression, word recognition was also a popular field of research at the time.  However, as at April 1992, there appears to have been no off-the-shelf product in the field of audio processing that was being used to recognise the content of broadcast radio or television signals in Australia.  By then, characterisation of audio signals was a well-developed technology and it was possible to perform sophisticated audio signal processing using widely available signal processing chips or computer programs for signal processing. 

11. As at April 1992, audio signals were characterised by performing analysis in the time domain and in the frequency domain.  An audio signal is captured in the time domain as an analogue signal, which represents how the amplitude or the strength of a signal varies over time.  The analogue signal is converted to digital data by sampling it at a sampling rate defined by the sampling time between consecutive samples.  The digitised data that results from that process represents the amplitude or strength of the signal at each of the times when the signal was sampled. 

12. Frequency domain data was routinely obtained by performing a Fast Fourier Transform (FFT) of the digitised time domain data.  FFT involves a large amplitude in the frequency domain representing a relatively large portion of the original signal being composed of that frequency component.  It was possible to examine how the frequency components vary over time by processing successive sets of samples.  That is to say, each set of samples, once processed by a FFT, represents the different frequency components during the sampling period.  By examining the frequency component of successive sampling periods, it was possible to observe how frequency components varied over time.  That can be represented as a spectrogram. 

13. By April 1992, word recognition employed spectrograms to produce a reference library of spectrograms, which visually represented different words.  Sampled speech could be processed to produce a spectrogram and compared to the library to identify the word. 

14. By April 1992, both time domain analysis and frequency domain analysis were straightforward to carry out and were commonplace.  In particular, FFT computing programs were widely available for converting data from the time domain to the frequency domain and the use of FFTs for frequency analysis was commonplace. 

    THE SPECIFICATION

15. The claimed invention of the Patent relates, relevantly, to the automatic recognition of widely disseminated signals, such as television and radio broadcasts.  The Specification gives the example of the broadcast of television signals that are transmitted as electromagnetic radiation and received by an antenna, resulting in a radio frequency (RF) signal.  The Specification states that the television signal can also be transmitted from a cable television head end station.  In such a case, the broadcast signal would be in electrical form.  A television signal contains both video and audio signals. 

16. The Specification refers to the fact that an advertiser will want to confirm that its advertisements have been broadcast by a designated broadcaster in their entirety and at the scheduled times.  An advertiser may also wish to know what advertisements of its competitors have been broadcast.  A conventional technique for monitoring the advertisements that have been broadcast involves employing a large number of people to watch designated broadcast channels over the course of a day in order to record such information in a written diary.  Such conventional techniques have a relatively high recurring cost.  In order to reduce such costs, automatic pattern recognition systems have been developed.  It is desirable to achieve the highest possible accuracy in such recognition of broadcast segments, as well as the greatest possible efficiency. 

17. The Specification describes problems encountered in achieving the highest possible accuracy in the recognition of a broadcast segment.  The problems encountered include that broadcast signals are subject to time shifts, such as a shift in the edge of a video picture that occurs from time to time.  Video signals are also subject to jitter.  Each of those effects will adversely affect a technique for segment recognition that relies upon sampling pre-determined portions of the video signal unless such effects are somehow compensated for. 

18. The Specification then goes on to describe a further difficulty encountered in the recognition of a broadcast of a segment based on video signals, namely, that the signatures that they generate tend to be distributed unevenly in value because of the similarities between video signals of different segments.  The Specification states that it had been thought impractical to carry out pattern recognition of audio broadcast segments because of the difficulties encountered in extracting sufficient information from audio signals.  The Specification refers to the fact that television audio signals are predominantly speech signals that are concentrated below approximately 3,000 Hz and possess very similar frequency spectra from one segment to the next.  The Specification says that, because of those effects, as well as signal noise, it is difficult to implement a pattern recognition technique for broadcast segment identification that possesses high accuracy. 

    Objects and Summary of the Claimed Invention

19. The Specification then describes the claimed invention under the heading “Objects and Summary of the Invention”.  Definitional material at the end of the body of the Specification must be taken into account when considering that description.  Thus, the Specification says the following:

    ·The term “broadcast” refers to various modes for the wide dissemination of information, such as radio and television broadcasts (whether distributed over the air, by cable, CAT, satellite or otherwise) as well as other modes for the wide dissemination of data and information.

    ·The word “comprise” and variations such as “comprises” and “comprising” are to be understood to imply the inclusion of a stated integer or step or group of integers or steps but not the exclusion of any other integer or step or group of integers or steps. 

    ·While video frame or field intervals are utilised in the disclosed embodiment, they are utilised merely for convenience and different intervals may be selected for signature generation and other purposes.  Any arbitrary interval may be utilised for signature generation and other purposes, provided that sufficient information is included in the selected interval.

    ·The system and methods for continuous pattern recognition of broadcast signals in accordance with the claimed invention may be utilised for other purposes, such as determining what programs, songs or other works have been broadcast, for example, for determining royalty payments, or else for determining the programs, commercials or other segments that have been received by audience members participating in an audience measurement survey.

    ·The systems and methods of the claimed invention may be implemented in whole or in part using either analogue or digital circuitry or both and the elements and steps of the systems and methods may be implemented or carried out utilising any of a variety of system and subsystem configurations and devices.

    ·Although specific embodiments are described in detail, the claimed invention is not limited to those precise embodiments and various changes and modifications may be effected to the embodiments described by a person skilled in the art, without departing from the scope or spirit of the claimed invention as defined in the Claims.

20. Arbitron says that the material that appears under the heading “Objects and Summary of the Invention” can fairly be regarded as consistory clauses, notwithstanding that they do not match all of the Claims.  Thus, the Specification states that it is an object of the claimed invention to provide methods and apparatus for use in broadcast segment recognition and the like, providing improved recognition accuracy and system efficiency.  Arbitron says that, in the context of the definitions described above, that includes use in audience measurement and audience surveys.  The passages of the Specification that follow describe several methods or systems for use in broadcast segment recognition. 

21. The Specification says that the claimed invention of the Patent provides a method and system of broadcast segment recognition comprising the following steps:

    ·producing a signature for each of a plurality of broadcast segments to be recognised,

    ·storing each such signature to form a database of broadcast segment signatures,

    ·monitoring a broadcast segment,

    ·forming another signature representing the monitored broadcast segment from a signal of the monitored broadcast segment,

    ·comparing the second signature, representing the monitored broadcast segment, with at least one of the broadcast segment signatures of the database, to determine whether a match exists between them,

    ·evaluating the validity of the match of the monitored broadcast segment by determining whether the match conforms with a predetermined profile of false matching segments.

22. The Specification also says that the claimed invention provides a method and system of broadcast segment recognition comprising two other series of steps similar to, but not identical to, the steps just described.  The differences relate to the step of evaluating the validity of the match. 

23. The Specification says that the embodiments of the claimed invention may be applied to a system for monitoring a continuous stream of broadcast signals and providing recognition information.  The system generally comprises a central site, one or more work stations located at the central site and one or more local sites.  Each of the local sites monitors broadcasting in a corresponding geographic region.  The central site communicates with each of the local sites to receive data regarding detection of known broadcast segments and potentially new, unknown segments, and to provide segment signature and detection information corresponding to new broadcast segments.  The communication may be, for example, by telephone line.  The central site compiles the received data and formulates it into a report that, for example, could be supplied to broadcast advertisers. 

    The Drawings of the Specification

24. The Specification contains a brief description of the drawings attached to the Specification. The presently relevant drawings are reproduced in Schedule 1 to these reasons. Schedule 2 contains a more detailed description of the relevant drawings.

    Audio Signature Generation

25. A detailed description of preferred embodiments is set out in the Specification.  A critical part of the Specification for present purposes is the section headed “Audio Signature Generation”.  In that section, the Specification describes preferred embodiments by reference to the drawings. 

26. Thus, the Specification states that audio signatures are generated by an audio signature generation assembly (250) incorporated in each of the channel boards for each broadcast channel of audio data that is to be monitored.  The audio signature generation assembly generally comprises:

    ·an audio signal conditioning and sampling circuit (202),

    ·an analogue/digital conversion and input buffer circuit (204),

    ·a transformation and signature extraction module (206), and

    ·an output circuit (208). 

27. The audio signature generation assembly thus includes an analogue portion, which contains the audio signal conditioning and sampling circuit (202), and a digital portion, which contains the analogue/digital conversion and input buffer circuit (204) and the output circuit (208) as well as the transformation and signature extraction module (206). 

28. The audio signal conditioning and sampling circuit (202) comprises an automatic gain control circuit, a switched capacitor filter and a sample and hold circuit.  A base band audio signal from one broadcast channel is supplied to the automatic gain control circuit to maintain a relatively uniform audio power level. 

29. The signal from the audio signal conditioning and sampling circuit is supplied to the analogue/digital conversion and input buffer circuit for conversion into digital form.  The digitised signal from the analogue/digital conversion and input buffer circuit is supplied to the transformation and signature extraction module, which utilises FFT for generating audio frame signatures and corresponding mask words.

30. The specification refers to the notion of a mask word in terms that suggest that that might be something different from the signature. Mr Bull suggested that they are different aspects of the same thing. The position is not entirely clear to me one way or the other. I have proceeded on the basis that the mask word is not an additional element of the claimed invention.

31. The audio signatures and mask words are supplied to the output circuit for conversion to a form suitable for output from the segment recognition subsystem (26) shown in Figure 2.  The output circuit (208) comprises a first-in-first-out buffer circuit (268), a microprocessor (270), a dual port RAM (272) and an interface circuit (274).  The microprocessor extracts the audio signature data received by the buffer circuit at predetermined intervals. 

32. The Specification then describes in more detail the processing performed by the digital signal processor in creating the audio signatures.  The processing performed by the digital signal processor is synchronised to the corresponding video fields such that a complete processing sequence is repeated every video frame.  More specifically, the digital signal processor transforms words of audio data received from the buffer circuit into 128 complex data points, by averaging adjacent ones of the 256 words and by setting the imaginary words to zero.  That reduces the data rate to approximately 7.5 K digital samples per second.  The input data rate for FFT processing satisfies the minimum sampling frequency required so that aliasing is avoided.

33. The transformation and signature extraction module (206) or digital signal processor (264) transforms successive samples of an electrical signal representing speech into successive groups of sub-band values using FFT, then extracts a signature by comparing the groups of values.  The module first transforms 256 words of audio data received from the FIFO buffer into 128 complex data points.  This halves the data rate to 7,600 digital values a second, but still keeps it high enough for satisfactory FFT processing. 

1. Thereafter a window module multiplies the complex data points by window coefficients.  That is, the magnitude of each complex number, representing the amplitude of the signal at an instantaneous point in time, is multiplied by a coefficient whose value depends on the point in time.  The multiplication process is performed in order to reduce the presence of signal spikes at either end of the frame interval and to inject a degree of periodicity into the audio data signal to improve the results of the FFT processing.  More specifically, since FFT processing is primarily designed for use with periodic signals, if the signal being transformed is not substantially periodic, the transformed signal may be incorrectly spread across several frequency bands.  Processing the complex data points with window coefficients is said to minimise the tendency for such signal spreading.

2. The block of data output by the windowing module is then processed by the FFT module.  The module converts the values representing the strength of the signal at different points in time (i.e. amplitude and time information) to data representing the accumulated strength of the different frequency components of the whole sample (i.e. amplitude and frequency information).  Information about how the signal varied in time during the sample period is lost.  The process is called a transformation, because information in the amplitude/time domain is transformed into information in the amplitude/frequency domain.

3. The FFT module “performs a complex radix-2 DIF (decimation in frequency) transform” and thereby “effectively implements bandpass filters.”  The output produced by the FFT module is then squared.  That data represents both magnitude and phase information of the audio signal in each band and is supplied to a magnitude squared module (306) to obtain a power or magnitude-squared value for each of the bands within the frequency spectrum.

4. Certain of the values are then selected by a band selection module (308), which is set to select a predetermined number of bands.  In a preferred embodiment, the frequency band values of 16 bands are selected.  The 16 frequency band values are then processed by a finite impulse response (FIR), or low pass, filter module (310), which “performs a 15-stage finite impulse response filter operation on each of the received 16 frequency band values”.

5. The values output from the FIR filter are processed by a clamping module (311).  The output of the clamping module is then processed by a normalisation module (313) which “normalizes” the values in a predetermined manner.  The normalised band values produced by the normalisation module (313) are then supplied to and processed by a signature generation module (312).  The module utilizes a NOW-THEN processing technique to produce 16-bit audio signatures such that each signature bit is obtained based on a current value (NOW value) of a corresponding frequency band and a previously obtained value (THEN value) of the same frequency band produced from a frame preceding the current frame by a predetermined frame offset.  The normalized frequency band values are written into a NOW-THEN circular buffer and the THEN values are obtained utilizing the predetermined frame offsets.

6. Specifically, a 16-bit value “DVAL” for each frequency band is produced in accordance with the equation:

   The value of each of the 16 bits in the audio signature for the current frame and the bit values of the corresponding mask word are determined in accordance with the value DVAL.  A signature bit is set to 0 if DVAL for the corresponding band is greater than 0, otherwise it is set to a value of 1. The signature is thereby produced. 

7. Mask bits for each band are set using a different process.  If the absolute value of DVAL is greater than a predetermined guard band value the mask bit is set to “0”, otherwise it is set to “1”.  The 16 mask bits so set, that is to say the “Mask Word” as that term is used in the Patent, provide an indication of the reliability of the signature by indicating the susceptibility of the corresponding bit of the signature to noise.  The produced audio signature and its corresponding mask word for each frame interval are thereafter supplied from the audio digital signal processor. 

8. The Audio Signature Generation section ends by stating that a technique for producing audio signatures described in that section compares corresponding frequency band values displaced in time for each of a plurality of frequency bands.  The Specification asserts that that technique can provide advantages over a technique that is based only on frequency or time displaced values, since the technique disclosed includes relatively more information in a given signature and provides a better balance of the types of information included in the signature.

9. In the example described in the Specification, only 16 out of the 256 frequency band values generated by the FFT module are selected for further processing.  So, only 1/16th of the information about the signal is retained.  Then, these values are averaged over 16 successive frames by the FIR module.  Once again only 1/16th of the information about the signal input into the FIR module is retained.  Clamping results in further loss of information.  Further information is lost in the signature generation step.  Each respective frequency band value (a 16-bit number) in the two groups is compared in the signature generation module to produce a binary outcome.  In other words, for each frequency band, two 16-bit numbers are converted into a single bit.  This results in further loss of information about the signal.

   THE CLAIMS OF THE PATENT

10. The Claims refer to methods “comprising the steps of” forming values, comparing groups and forming a signature and to systems “comprising … means” for forming values, comparing groups and forming a signature.  Claim 1 of the Patent is for a method of producing a signature characterising an audio broadcast signal for use in broadcast signal recognition, comprising several steps.  Claim 4 of the Patent is for a system for producing a signature characterising an audio broadcast signal for use in broadcast signal recognition, comprising means for carrying out the steps described in Claim 1. 

11. There are then two groups of three dependent claims.  Claims 5, 6 and 7 are methods that narrow Claim 1.  Claims 8, 9 and 10 are systems that narrow Claim 4.  There is a symmetry between Claims 5 and 8, 6 and 9 and 7 and 10.  Claims 5 and 8 narrow the third step or means, relating to forming the signature.  Claims 6 and 9 narrow the second step or means, relating to comparing a first group of frequency band values with a second group of frequency band values.  Claims 7 and 10 also narrow the third step or means, relating to forming the signature. 

12. There are four Integers in Claim 1.  The third Integer has three sub-integers.  The Integers are as follows:

A	A method of producing a signature characterizing an audio broadcast signal for use in broadcast signal recognition, comprising the steps of:
B	forming a plurality of frequency band values each representing portions of said audio broadcast signal within [a] respective predetermined frequency band.
C (1)	comparing each of a first group of said plurality of frequency band values with a respective one of a second group of said plurality of frequency band values
C (2)	representing portions of said audio broadcast signal within the same respective predetermined frequency band,
C (3)	each respective one of the second group of said plurality of frequency band values representing portions of said audio broadcast signal at least a part of which were broadcast prior to the portions of said audio broadcast signal represented by the corresponding one of said first group of said plurality of frequency band values; and
D	forming said signature based upon the comparisons of the first and second groups of said plurality of frequency band values

[Emphasis added]

1. As indicated above, “comprise” and its variations are not to be understood as meaning “consisting of”, which has as a notion of exhaustive definition.  It is common ground that the phrase “for use” in Integer A is to be construed as meaning “suitable for use in”.

2. The Claims of the Patent are quite broad when read without the benefit of any context.  Thus, the phrase “a signature characterising an audio broadcast signal” could be understood as consisting of text, binary numbers or real numbers that are representative of the signal.  That could encompass signatures that contain too much data for the purpose, which would not be conducive for speedy automatic recognition of broadcast signals and, therefore, would not be practical or useful.  On the other hand, the material in the Specification indicates that the method disclosed by the Patent relies on reducing the audio signal to a very small amount of data. 

3. Much turns on the meaning of the term “signature” in the Claims.  A signature is a representation of something that is unique to the thing being represented.  Its uniqueness identifies a particular segment of a broadcast signal.  To say, as Claim 1 does, that a signature characterises a broadcast signal implies that the signature characterises the broadcast signal uniquely.  The signature must be a signature unique to a single broadcast signal.  A signature identifies a unique piece of audio signal.  The term refers to data or a signal identifying and describing the pertinent components of other data or signals from which the first data or signal are derived.  Claim 1 requires that the signature produced by the method described in the Patent, must characterise an audio broadcast signal uniquely, in that sense.  It identifies and describes, or characterises, the relevant signal in another form. 

4. The predetermined frequency bands referred to in Integer B can be described as a partitioning of the audio broadcast signal in the frequency domain.  There is a plurality of such frequency bands.  An example given in a table in the body of the Specification describes 16 such bands as follows:

   Band  Centre Frequency

   Band1  120Hz
   Band2  150
   Band3  180
   Band4  210
   Band5  240
   Band6  300
   Band7  360
   Band8  420
   Band9  480
   Band10  600
   Band11  720
   Band12  840
   Band13  960
   Band14  1440
   Band15  1920
   Band16  2400

   Each frequency band has an upper and lower boundary frequency.  The table shows the centre frequency, or mid-point of each band.  Each band is of 30 Hz.  For example, band 1 is 30 Hz, from 105 Hz to 135 Hz, of which 120 Hz is the centre frequency or mid point of the band. 

5. Integer C of Claim 1 involves a first group of frequency band values at one point of time and a second group of frequency band values at another point of time.  Curiously, the second group is prior in time to the first group.  The reference to a group of frequency band values is a reference to predetermined band values for each band. 

6. Under Integer D, a signature is formed.  That is to be based on data resulting from the comparisons referred to in Integer C.  Mr Bull described the signature as being based upon differences between the spectra, signifying the direction, but not the magnitude, of the difference. 

7. The full text of the Claims is set out in Schedule 3.  Arbitron does not allege infringement of Claim 2 or Claim 3 and it is not necessary to mention them further. 

   THE TELECONTROL SYSTEM AND DEVICE

8. Telecontrol’s alleged infringement is a system for audience research, namely, measuring what people are listening to, in circumstances where comparing whole programs with whole programs would, as a practical matter, be impossible.  Under its system, the persons who are part of the audience measurement or survey panel, the sample group, wear wrist devices that receive the signal broadcast through the air where the persons are located.  Various processes in the wrist devices store data relating to the signal that has been received by them.  The data that is stored is matched with initial data that was prepared at the point of transmission. 

9. Mr Koschak described the Telecontrol system and device in oral evidence, accompanied by diagrams.  The diagrams are set out in Schedule 4 to these reasons. Mr Koschak described six steps in the Telecontrol process.  It is common ground that the compression method described in European Patent 887958 (the Liechti Patent) is identical to the compression method employed in the Telecontrol system and device.  In summarising Mr Koschak’s evidence as to the six steps below I have used values disclosed in the Liechti Patent, which are given by way of example and do not necessarily represent the values employed in the Telecontrol system and device.

10. Step 1 is concerned with the sampling of ambient sound.  A microphone is built into the wrist device and picks up ambient sound.  Such ambient sound could be from the loud speaker of a radio or television receiver, or from some other source, such as a vacuum cleaner or a barking dog.  The sound picked up by the microphone is then processed by a converter.  By that process, the sound is converted from analogue to digital form.  That process involves generating a signal that is discrete in time and in amplitude.  That is to say, the signal is sampled at certain intervals.  At the end of Step 1, there is a digitised wave form with a number of sample points.  That is approximately four seconds of audio recorded by the wrist device.

11. Step 2 is concerned with sub band decomposition.  The step involves a Discrete Wavelet Transform (DWT) process.  The audio signal that is picked up by the microphone and converted to digital form in step 1 is then split into eight frequency bands.  The lowest two bands are discarded because of noises associated with the wearing of the device.  Step 2 is carried out by a “dyadic tree”, which is the way in which the DWT process is implemented.  There are three stages, which work the same way and are cascaded.  One stage of the dyadic tree consists of a low pass filter below and a higher pass filter above.  The process takes the original sound signal and puts it evenly into the higher frequency band and the lower frequency band.  Each band has half the number of sample points.  The result of Step 2 is six frequency bands, which contain the respective part of the audio signal in those frequency bands.

12. Step 3 is concerned with squaring or averaging.  There are three processes.  By Step 3, the audio signals are converted to energy signals that are then averaged and down sampled.  The three processes are a squaring process, a low pass filtering and a down sampling by a fixed factor (Factor Y).  The result of step 3 is six time sequences.  Each time sequence contains the smoothed energy contour of the respective frequency bands of the input signal over the four seconds sampling time.  If there is a noisy signal, for example a vacuum cleaner or a barking dog near the speaker of the radio receiver, there would be disturbance in the audio signal.  Since the signals are squared, the signals are put into the positive part of the amplitude.  By that means, the whole entry profile will be slightly lifted. 

13. Step 3 is the last step of the real time processing part of the Telecontrol process.  The real time part is carried out while the sound samples are being taken from the microphone and converted and, after sampling finishes, the process becomes offline.  Each time sequence of the four seconds of time contains a fixed number (the Fixed Number) of values.  The result of the squaring operation in Step 3 is a stream of data comprising a specified number of 32-bit digital values for each of six frequency bands.  That represents four seconds of ambient noise collected and processed.

14. Step 4 is concerned with converting values and differencing.  Step 4 contains two processes.  The first is a conversion function (shown as D in the diagram in schedule 4) and the second process is a differencing function (shown as E in the diagram in schedule 4).  The squaring process of Step 3 results in significantly larger values.  It is necessary to change that because the numbers will otherwise be too large.  Every sample is therefore converted, resulting in smaller values.  The purpose of the differencing process is to discard the constant elements of a signal, which cannot be used in the later process.  The two processes of converting and differencing are carried out for each band sequentially.  Thus, one time sequence is taken and the conversion operation is applied for each element of that sequence.  The differencing operation is then applied for each element of the time sequence.  The old values are then overwritten.  The result of Step 4 is that there are six time sequences containing information as to how the energy within the respective frequency bands changes over the four seconds of the sampling period.  At the end of Step 4, there are six time sequences, each containing a fixed number (the Sample Number) of sample points.  Each of the Sample Number of values is 32 bits.  Those values are written over the pre-existing data such that the only data that is retained for each time sequence is the Sample Number of values, each of which is 32 bits.

15. Step 5 is concerned with normalisation.  Its purpose is to ensure that there is no difference according to whether one is listening to a sound source with a high sound volume or a sound source with a low sound volume.  The maximum value in each time sequence is identified.  Each value in the time sequence is then divided by the maximum value so that there is a range between -1.0 and +1.0.  The result of that normalisation is a peak in absolute value at either +1.0 or -1.0 in amplitude.  Thus the maximum amplitude range is -1.0 to +1.0.  The result of the normalisation process is six time sequences, each containing the Sample Number of values.  Each of the time sequences contains the normalised energy variations of the respective frequency band over the four seconds of sampling time.

16. Step 6 is concerned with non-linear quantisation.  The values from -1.0 to +1.0 are packed into a specified number of values.  The result of Step 6 is six time sequences containing the Sample Number of 4-bit values.  The 4-bit values determine how the normalised energy within the respective frequency bands changes over the four second sampling time.  In total, a certain number of bytes or bits of data is generated for the four seconds of sampling time.

17. The data that is derived from those six steps are stored in the wrist device.  The device is subsequently sent to a central station and the samples are correlated to central samples to see if the wearer of the device has listened to a radio channel or station and, if so, to which channel or station they have listened. 

    CONSTRUCTION OF THE CLAIMS OF THE PATENT

18. The question of construction is whether the Claims of the Patent, in particular the steps of Claim 1, should be construed narrowly, as disclosing only the detailed method of producing a signature described in the body of the Specification.  That is Telecontrol’s contention.  Arbitron says that the Claims should not construed narrowly by reference to the body of the Specification in the way suggested by Telecontrol. 

    Relevant Principles of Construction

19. In determining the nature and extent of the monopoly granted by a patent, the complete specification must be read as a whole.  However, that whole is made up of several parts, each of which has a different function.  The claims mark out the legal limits of the monopoly claimed and granted.  The body of the specification, on the other hand, describes how to carry out the invention claimed and the best method known to the patentee of doing so.  While the claims must be construed in the context of the specification as a whole, it is not legitimate to narrow or expand the boundaries of the monopoly as fixed by the words of the claims.  If a claim is clear and unambiguous, it is not to be varied, qualified or made obscure by statements found in other parts of the complete specification.  Thus, it is not permissible to add to the words of the claim glosses drawn from other parts of the complete specification.  On the other hand, it is legitimate to refer to the body of the specification to explain the background of the claims, to ascertain the meaning of technical terms and to resolve ambiguities in the construction of the claims (see Kinabalu Investments Pty Ltd v Barron & Rawson Pty Ltd [2008] FCAFC 178 at [44]).

1. It is not permissible to confine the claims of a patent by reference to the preferred embodiment or other passages in the body of the complete specification (Welch Perrin & Co Pty Ltd v Worrel (1961) 106 CLR 588 at 610, Kimberly-Clark Australia Pty Ltd v Arico Trading International Pty Ltd (2001) 207 CLR 1 at [15]). While the specification must be read as a whole, the claims are not to be read down by reference to preferred embodiments described in the body of the specification (see Lockwood Security Products Pty Ltd v Doric Products Pty Limited (2004) 217 CLR 274 at [68] – [69]; Rehm Pty Ltd v Websters Security Systems (International) Pty Ltd (1988) 81 ALR 79 at 94).

   Telecontrol’s Contentions

2. The essential features of the method or systems described in Claim 1 and in Claim 4, and their respective dependent claims, are:

   ·B: formation of a plurality of band values;

   ·C: comparison of one group of such band values with a second group of such band values;

   ·D: formation of a signature from that comparison of the groups.

   The first sub-integer of Integer C requires that each of the first group of a plurality of frequency band values be compared with the second group of a plurality of frequency band values.  Telecontrol says that that requires that the system must expressly take a value from each of the two groups and compare them in order to satisfy the requirement that the process must treat collections of values as groups.

3. Dr Pang said that the step of comparing in Integer C does not, on its own, clearly describe the type of comparison that is being performed.  The comparison could be a subtraction operation, with the result being a real number, a division operation of two energy values or a threshold operation, with the results being logical outcomes either “1” or “0”.  The frequency band values, as described in Claim 1, are very general and could be frequency transform values, obtained directly from the FFT, of the time samples or magnitudes of the discrete frequency transform or energy values for the frequency bands.  The claims impose no upper limits on the number of frequency bands that are employed in the formation of the signature.  Accordingly, there could be as few as two frequency bands.  The Specification discloses no range of numbers of frequency bands that will provide a signature that can be used effectively in a signal recognition process.  On the other hand, an example of 16 frequency bands is contained in the Specification.

4. Telecontrol places considerable significance on the use of the term “group” in Integer C.  The embodiment of the claimed invention described in the Specification discloses a method or process by which actual blocks of values are formed, each value relating to a single frequency band at a point of time.  The groups are formed, identified and compared, in order to produce a “signature”.  Thus, Telecontrol says, the signature must actually be produced. 

5. Further, Telecontrol argues, hypothetical groups would not satisfy Claim 1.  Telecontrol contends that the term “group” in Claim 1, read in the context of the Specification as a whole, must refer to actual groups physically created, recognised and used, since the only reference in the body of the Specification is to such groups.  It says that there is no justification for construing Claim 1 as encompassing hypothetical groups. 

6. The body of the Specification discloses a process utilising the FFT process.  That process utilises blocks of data, where each block consists of a value relating to each of the 16 frequency bands.  Those blocks are treated as groups.  Those groups are treated as the plurality.  It is the comparison made between those groups, once formed that results in a signature being formed, produced and supplied.  The signature identifies the sign, positive or negative, of the difference between each of the respective values.  That sign is the single bit that is inserted into the signature.  Thus, the signature consists of the 16 bits and is itself the direct product of the comparison of the two groups formed by the FFT process.  Telecontrol says that that is essential to the process disclosed in the body of the Specification. 

7. Telecontrol says that the formation of groups containing a value from each of the frequency bands is a defining characteristic of the FFT process described in the Specification.  It says that the fact that FFT produces “blocks” of values demonstrates that the reference to groups is a reference to actual and not to hypothetical groups. 

8. Telecontrol says that, therefore, the following are essential features of the method or systems described in Claim 1 and Claim 4 and their respective dependent claims:

   ·formation of an actual plurality of band values consisting of actual groups;

   ·the comparison of those actual groups;

   ·the formation of a signature from the comparison of the groups.

   Application of the Principles

9. The Specification contains many passages that make it clear that the claimed invention is not limited to the preferred embodiments disclosed in the body of the Specification. The preferred embodiments are no more than the best method known to the patent applicant of performing the invention, as required by s 40(2)(a). Thus, the Specification makes clear that other objects, features and advantages of the claimed invention will become apparent from the detailed description of the illustrative embodiments when read in conjunction with the drawings forming part of the Specification. 

10. Phrases such as “illustrated”, “embodiments” and “specifically” recur throughout the relevant parts of the Specification.  A description in general terms in the Specification refers to:

    …the above technique for producing audio signatures which compares corresponding frequency band values displaced in time for each of a plurality frequency bands…

    That is effectively a consistory clause.  Further, the passages at the end of the body of the Specification, while in part conventional, make it clear that broadcasts include radio and television broadcasts and that the broadcast signal recognition can be useful, inter alia, for audience measurement surveys. 

11. Thus, the Specification asserts that the elements and steps of the systems and methods of the claimed invention may be implemented or carried out:

    utilising any of a variety of system and subsystem configurations and devices, and that the various steps and elements may be carried out and implemented either with the use of hardwired or software based processors.

    Although specific embodiments of the invention may have been described in detail herein with reference to the accompanying drawings, it is understood that the invention is not limited to those precise embodiments, and that various changes and modifications may be effected therein by one skilled in the art without departing from the scope or spirit of the invention as defined in the appended claims.

12. I do not consider that the Claims of the Patent are limited to particular means of implementing the elements and steps of the systems and methods claimed that are described in the body of the Specification.  The Claims do not descend to that level of detail. 

13. The essence of the claimed invention of the Patent is the production of a signature that identifies a broadcast signal.  Claim 1, without anything further, does not describe with any particularity or precision the way in which the signature is produced.  Standing by itself, Claim 1 may not disclose a way of performing the claimed invention, namely, the production of a signature that identifies what has been broadcast on a particular audio channel or station. 

14. The particular embodiments of the claimed invention in the body of the Specification explain how the claimed invention of the Patent operates.  Thus, the particular embodiments, while they are not to be treated as an exhaustive statement of the extent of the claims, convey information as to the way in which the patentee says the signature is to be produced.  It is unhelpful to endeavour to construe the Claims in a vacuum.  Questions of construction may arise in relation to the validity of a Claim.  Such questions may also arise in the context of a particular alleged infringement. 

    VALIDITY OF THE PATENT

15. As indicated above, Telecontrol impugns the validity of the Patent on four grounds as follows:

    ·failure to comply with s 40(3) of the Act in that the claimed invention of the Patent is not fairly based on the matter described in the Specification;

    ·the claimed invention of the Patent is not novel;

    ·the claimed invention of the Patent does not involve an inventive step;

    ·Arbitron is not entitled to the Patent within s 138(3)(a).

    In addition, Telecontrol contends, alternatively to the last ground, that the Register should be rectified pursuant to s 192(1) of the Act to remove registration of the Patent. That contention and the fourth ground are based on contravention of s 64(2).

16. It is convenient to deal with each of those grounds separately. The last ground involves a question of the construction of Chapter 6A of the Act, dealing with divisional applications, that goes beyond the dispute between the parties to the present proceeding. Accordingly, the Commissioner of Patents was invited to make, and made, submissions on that question.

    Fair Basis

17. The question of whether an invention as claimed in any claim is fairly based on the matter described in the complete specification is a distinct question that should not be conflated with other issues going to validity, such as novelty (see Lockwood Security Products Pty Ltd v Doric Products Pty Ltd(No 1) (2004) 217 CLR 274 at [48] (Lockwood’s Case No 1)). The question is whether, assuming the prerequisites of s 18(1) for a patentable invention are satisfied, a claim of a patent travels beyond the complete specification of that patent.

18. Thus, there must be a real and reasonably clear disclosure, in the body of the specification, of what is then claimed, so that the claimed invention, in a general sense, is described in the body of the complete specification (see Lockwood’s Case No 1 at [69]). Such a comparison requires attention to the construction of the complete specification as a whole. In assessing whether a claimed invention is fully described or fairly based, it is necessary to take into account, apart from common general knowledge, so far as such common general knowledge may cast light on questions of construction, only what is said about the claimed invention in the specification, independently of whether it is otherwise a patentable invention (Lockwood’s Case No 1 at [72]).

19. Telecontrol contends that the disclosure made in the body of the Specification is confined to a very particular and specific process, certain elements of which give precise, specific and individual benefits.  It says that there is no disclosure, or even any suggestion, that any other system or process can give the benefits identified:  there are no passages that generalise on the very specific process described for obtaining the frequency band values.  It says, further, that there is no description of how the identified benefits can be obtained in any way other than by the use of the particular process described.  Thus, it says, if the Claims are not to be constrained by reference to the body of the Specification, they are not fairly based on the material in the Specification. 

20. Arbitron describes Telecontrol’s strategy in relation to validity as relying on a number of alleged “squeezes” or “two-edged swords”, the principal elements of which are:

    ·To assert that there is no consistory clause, even though, if there is no consistory clause, that has no legal consequence, since the only question is what the Specification, read as a whole, describes; in any event, Arbitron says, there is a consistory clause in the Specification.

    ·To assert a doctrine of the law of fair basing or sufficiency that requires conformity between the claims and the body of the specification, notwithstanding disconformity between claims and specification is no longer a ground of invalidity.

    ·To imply that something improper has occurred by reason of a divisional of a divisional.

21. Thus, says Arbitron, Telecontrol’s case is that:

    ·It is only if a wide construction is given to the Claims, such that they are not limited to the particular embodiments described in the body of the Specification, that Telecontrol’s system infringes or may infringe.

    ·However, if the Claims are not so limited, they fall foul of s 40(3) because they are not fairly based on the body of the Specification.

    ·Alternatively, if the Claims are not so limited, they are so broad that they are neither novel nor inventive.

22. Telecontrol says that there is no description of a method or system that would enable the procedures described in the Audio Signature Generation section of the Specification to be used for determining what programs were watched, listened to or heard, rather than what programs were broadcast.  The Specification states that, while an embodiment of the claimed invention has been disclosed for recognising television broadcast commercials, the systems and methods for continuous pattern recognition of broadcast segments of the claimed invention may be utilised for other purposes, such as determining what programs, songs or other works have been broadcast, or for determining the programs, commercials or other segments that have been received by audience members participating in an audience measurement survey.  However, Telecontrol characterises those statements as being “loose or stray” in nature and not a decisive guide as to the construction of the whole of the Specification (see Lockwood’s Case No 1 at [98]). According to Telecontrol, the statements describe other uses for the system and processes of the claimed invention and do not describe broader principles or processes for obtaining a “signature” as is described in the Audio Signature Generation section of the body of the Specification.

23. Telecontrol asserts that there is no disclosure in the body of the Specification of a method or principle of general application and that there is no discussion of the prior art relevant to the method claimed or the problem that was to be solved by the claimed invention.  Further, Telecontrol says, there is no consistory clause:  that is to say, there is no general description of that of which the claimed invention of the Patent is said to consist.  The disclosure in the body of the Specification is limited, relevantly for present purposes, to the description contained in the Audio Signature Generation section, in the context of the title of the Patent.

24. The description in the Audio Signature Generation section spells out a method for generating audio frame signatures and corresponding mask words up to, but not including, the signature generation module.  Telecontrol says that that disclosure is of a very specific and detailed process for achieving a signature heavily based upon FFT.  The Audio Signature Generation section refers only to FFT.  Telecontrol says that that description also describes steps to be taken to optimise the method, again utilising FFT.  Telecontrol points to the statement that the transformation and signature extraction module utilises FFT for generating audio frame signatures and corresponding mask words.  No other method of forming a plurality of frequency band values, as required by Integer B, is mentioned.

25. Telecontrol says that the processes designed to facilitate the use of FFT are defined in intricate detail in the Audio Signature Generation section of the Specification.  It says that there is no foundation to be found within the body of the Specification for a method of producing a signature utilising a DWT.  Telecontrol says that, therefore, the Claims of the Patent are not fairly based on the disclosure in the Specification, in that there is no disclosure supporting the Claims if, as asserted by Arbitron, properly construed, the Claims encompass the following:

    ·a group that is never formed or compared with another such group, but which simply includes values that share common characteristics, and

    ·a signature that is never actually produced or supplied. 

26. Telecontrol says that the Claims, construed as asserted by Arbitron, are not limited by integers that reflect:

    ·the conditioning processes performed by the “conditioning and sampling circuit” in order to make the signal suitable for FFT;

    ·parameters relating to sampling performed by the “analogue to digital conversion circuit”;

    ·the windowing processes performed to make the signal more periodic and to remove signal spikes in order to make the signal suitable for FFT;

    ·the filtering and averaging processes performed by the FIR module to improve signature stability; or

    ·the normalisation process that is the subject of Claims 2 and 3, which are not asserted against Telecontrol, to adduce “clumping”.

    Telecontrol asserts that the Specification does not disclose how a process of forming a plurality of frequency band values, as referred to in Integer B, which does not include those steps, will work.

27. Telecontrol says that there is no disclosure, in the body of the Specification, of the benefits to be obtained from the claimed invention, other than for the specific embodiment described.  Thus, it says, there is no basis provided in the body of the Specification for all processes having the three generalised steps of Claims 1 and 4, regardless of whether they utilise the specific processes with specific advantages identified within the body of the Specification.  Accordingly, says Telecontrol, Claim 1 is not fairly based on the disclosure in the Specification.  Telecontrol contends that Claim 4, which is for a system producing a signature, suffers from the same deficiencies as Claim 1. 

28. Similarly, Telecontrol says, there is no foundation for Claim 5.  Claim 5 is for the method of Claim 1, modified such that the step of forming the signature comprises including in the signature, data produced from the comparisons of the first and second groups of frequency band values.  There is no articulation in the body of the Specification of including, in the signature, data produced from comparisons.  Claim 6 must fall with Claim 1 for the same reasons and Claim 7 suffers from the same deficiency as Claim 5.  Claims 8, 9 and 10, which are system claims, must fall for the same reasons as lead to invalidity of the counterpart methods of Claims 5, 6 and 7.

29. Arbitron accepts that the Claims claim one aspect of a broader system but says that, as a matter of law, that does not give rise to a lack of fair basis within the meaning of s 40(3). Putting it another way, Arbitron says that the Claims are based on the detailed description of a crucial element of the broad group of methods and systems disclosed in the body of the Specification. Arbitron readily accepts that, as could be expected with a divisional patent, much of the text of the Specification is presently irrelevant. However, Arbitron says that Telecontrol’s construction of the Patent is not a fair reading in so far as it would confine the Claims to the particular preferred embodiment described in the Specification.

30. Telecontrol asserts that the function of the processes and systems described in the Patent is to identify the programs that broadcasters are broadcasting and not to gather, for rating purposes, information as to what is being watched or listened to; the processes and systems described identify what is being broadcast on a particular station or channel, and do not identify what station or channel audiences have their particular television or radio turned to.  However, the body of the Specification expressly refers to an audience measurement survey and refers to the use of the systems and methods of the claimed invention for determining the programs that have been received by audience members.  Arbitron says that is precisely what the Telecontrol system does.  I do not consider that it is a fair characterisation of those passages to describe them as “loose or stray”. 

1. Thus, in the preferred embodiment, there is a first group of frequency band values formed from the broadcast at a particular point in time (Time 1).  The second group of frequency band values is formed from a broadcast earlier in time, but referred to as the second point in time (Time 2).  The comparison step is a subtraction of one of the respective frequency band values for each frequency band at one instant from the values at the next instant. 

2. Arbitron rejects Telecontrol’s answer to that proposition.  First, Arbitron says that Telecontrol would construe the term “comparing” in other contexts rather than in the context of the Patent.  Mr Bull said that the distinction between comparing, on the one hand, and differencing, on the other, is an artificial one.  Secondly, Arbitron says that Telecontrol relies on the contour metaphor and the idea of differentiation.  Arbitron says that the Telecontrol system produces discrete digital values and differences.  It merely subtracts one from the other.  It does not differentiate them to obtain the slope of a curve.  Thirdly, Arbitron says that Telecontrol misreads the Patent, which describes a differencing as the comparison.  Mr Koschak agreed that the description of the preferred embodiment in the body of the Specification describes the formation of the signature bit as representing the sign (+ or -) of the NOW-THEN subtraction. 

3. Thus, the Specification provides that the received normalised frequency band values are written into a NOW-THEN circular buffer and the THEN values are obtained utilising the predetermined frame offsets.  The frame offsets may vary from band to band.  The signature generation module produces a value DVAL for each frequency band in accordance with the following equation:

   The value of the 16 bits in the audio signature for the current frame and the bit values of corresponding mask word are determined in accordance with the value DVAL.  That is, a signature bit is set to 0 if DVAL for the corresponding band is greater than 0, otherwise it is set to a value of 1.  Similarly, each mask bit is set to a value of 0 if the absolute value of DVAL for the corresponding band is greater than a predetermined guard band value (GRDVAL).  For example, if DVAL has a range of 0 to  -7FFF (Hex), a guard band value of 600 (Hex) may be employed, although different values of GRDVAL may yield acceptable results.  The produced audio signature and its corresponding mask word for each frame interval are thereafter supplied from the audio digital signal processor.  Mr Koschak agreed that the differencing there described determines the sign and the result is stored as the signature bit as 0 or 1.

4. Mr Bull said that in the equation set out above, the operation in the numerator is the differentiation, or differencing, step and the operation in the denominator is a normalisation step.  He said that, following that step, the Patent describes a process of 2-bit quantisation, where the (+/-) sign and the magnitude of DVAL, respectively the “signature bit” and the “mask bit”, are determined.  The sign indicates whether the value is increasing or decreasing in size and the magnitude corresponds to the size of the difference represented by the calculation, “NOW-THEN”.  Mr Bull said that the sign and magnitude of the frequency band values are also determined in the Telecontrol system.

   Pre-formed Groups

5. Arbitron characterises this issue as Telecontrol’s main defence to its infringement allegation.  Arbitron says that the short answer to Telecontrol’s argument is that Integer C does not require preformed groups, collected together, to be compared on block.  It says, further, that subject to the conversion of values point, the Telecontrol system does prepare preformed groups, which are set up and ready to be differenced or compared, at the end of the real time processing.

6. Arbitron asserts that, while Integer B requires forming a plurality of frequency band values, it says nothing about how they are to be stored or arranged.  Integer C then defines a comparison.  What is compared with each of a first group is a respective one of a second group, representing portions within the same respective pre-determined frequency bands.  That is to say, Arbitron says, each value for one instant of time is compared with the respective value, for the same band, for a prior instant of time.  “Each respective one” of the second group is defined as representing a portion of the signal broadcast prior to the portion represented by “the corresponding one” of the first group of values. 

7. Thus, Arbitron says, the focus of Integer C is the comparison of each respective one value of a later (first) group with the corresponding one of a prior (second) group of values.  The concept of “respective” and “corresponding”, Arbitron says, means that the individual values that are being compared relate to the same frequency band.  The concept of “group” is used to identify an important characteristic possessed by the values being compared:  the second group is prior to the first.  A group may be defined as a number of persons or things, regarded as forming a unity on account of any kind of mutual or common relation, or classed together on account of a certain degree of similarity” (see Oxford English Dictionary).  Thus, Arbitron says, contrary to Telecontrol’s contention, Integer C requires the comparison of individual values, which form a group only in the sense that they are values formed with respect to a later (first) or prior (second) period of time.

8. Arbitron contends that Claim 1 makes it clear that the attribute that characterises the first group, and then the second group, is that one is formed with respect to a later time and one with respect to a prior time.  Telecontrol’s construction attempts to impose on the claim, the attributes of FFT as against those of DWT.  For example, Mr Koschak said that, with FFT, one gets the frequency values at one point of time.  Arbitron says that that is precisely what the Telecontrol process also gets. 

9. Arbitron points again to the statement in the Specification that, for each corresponding video frame interval, 16 such normalised band values are supplied to the signature generation module, one for each of the 16 frequency bands:  the Specification does not say “as a group”.  Arbitron then points to the next part of the Specification, which states that the signature generation module utilises a NOW-THEN processing technique to produce 16-bit audio signatures, such that each signature bit is obtained based on a current value (or NOW value) of a corresponding frequency band and a previously obtained value (or THEN value) of the same frequency band produced from a frame preceding the current frame by a predetermined frame offset.  Arbitron says that that is a description of the comparison of each “respective one” value with each “corresponding one” value from a prior time as described in Claim 1.

10. The Specification then describes the comparison by reference to values for each of the 16 frequency bands and the signature generation module produces a value DVAL for each frequency band in accordance with the equation described above.  Thus, the value of each of the 16 bits in the audio signature for the current frame, that is to say instant of time, is determined.  In short, the result of a comparison between each pair of values is obtained, for each of the 16 bands.  Accordingly, Arbitron says, the contention of Telecontrol that groups must be formed, as such, before the comparison takes place, is without substance.

    The Conversion Operation

11. Arbitron contends that, if its contentions as outlined above are accepted, there is no requirement for a preformed group and the presence of the conversion operation before the differencing in the Telecontrol system does not matter.  Alternatively, if they are not, Telecontrol relies on the conversion as, in effect, dispersing the groups that are undoubtedly formed at the end of Step 3 in the Telecontrol process.

12. Under the Telecontrol process, the frequency band values are all formed and stored, each of the Fixed Number of values for the first point in time is then converted and then the pairs are differenced and the result is stored, that process being repeated for each of Bands 2 to 6.  Arbitron says that there are three ways of looking at that process:

    ·first, the values formed, band by band, after the conversion operation but before the differencing, are frequency band values, they are a group to the extent required by Claim 1 and they are compared in the way described above;

    ·secondly, the conversion does not make a difference, the values grouped at the end of step 3 of the Telecontrol process are subject to an additional step before the differencing, but the claim does not exclude that, or

    ·thirdly, the converted value can be viewed as part of the comparison, where for reasons of process and convenience, the 32-bit values are converted into 16-bit values. 

    Arbitron says that, on each of those three approaches, Integer C is literally present.

13. Arbitron says that Telecontrol cannot escape infringement by contending that adding the conversion operation before the differencing destroys the groups formed at the end of Step 3 of the Telecontrol process.  Mr Koschak said that the conversion function in the “DSP Code” was used because of a digital constraint of the DSP.  He said that the Telecontrol system uses a 16-bit DSP and squaring a 16-bit signal yields a 32-bit signal.  In order to process the energy contour efficiently, the Telecontrol system must, he says, calculate a corresponding 16-bit value by using a conversion operation.  However Arbitron attaches significance to the fact that Mr Koschak’s earlier description of the technical differences between the Telecontrol system and the system described in the Patent did not mention the conversion function. 

    Integer D

14. Integer D describes a step or integer of forming the signature based on the comparisons of the first and second groups of the plurality of frequency band values.  Arbitron says that Integer D is present in Telecontrol’s system by the resultant difference value forming the basis of the comparison process to give a 4-bit digital value.  Mr Bull said that the relevant step in the Telecontrol system involves the energy difference values being normalised and then converted to an integer value, then to an ordinal value and finally to a reduced form. 

15. Arbitron says that Telecontrol seeks to limit Claim 1, impermissibly, by reference to the preferred embodiment in the body of the Specification.  Thus, Telecontrol argued that in the only embodiment described in the Specification, the signature described is the direct consequence of a comparison that delivers a binary outcome to the question whether “THEN values are bigger or smaller than their counterpart NOW values”.  The inclusion of additional integers to a claimed combination does not necessarily avoid infringement.  If such additional integers are properly characterised as inessential or do not make a new working of the combination, and all of the essential integers of the claimed combination are present, there will still be infringement (see Fresenius Medical Care Australia Pty Ltd v Gambro Pty Ltd (2005) 224 ALR 168 at [70]).

16. Telecontrol contended that, because there is no comparison of the respective frequency band values of two groups of frequency band values displaced in time, Telecontrol does not form a signature in the manner claimed.  Arbitron says that, if its submissions concerning groups are accepted, Telecontrol’s contention is misconceived.  Arbitron says that Telecontrol’s contention accepts that a defining characteristic of the signature is that it is based upon the comparison between the groups of frequency values formed at successive instants of time.  Arbitron says that that is what the members of the first and second groups respectively have in common:  that is how the groups are defined.

17. Arbitron also dealt with what it described as Telecontrol’s characterisation of Telecontrol’s results as being the result of a differencing operation that is performed on the sequence of values that represents a contour of amplitude of the signal in each band of frequencies during a time period.  Information about how the amplitude of the signal evolves over a period of time, namely, four seconds, in each of the six bands, is retained.  Arbitron says that Telecontrol’s system produces discrete digital values representing energy at instants of time.  The references to “contour of amplitude” and its “evolution” are, Arbitron says, merely approximate metaphors.  Arbitron says that, in the discourse of the Claims, values at a second instant are compared with, or subtracted from, values at a first instant and the results of those comparisons are stored, as a 4-bit number after further compression steps. 

18. Accordingly, Arbitron says, Integer D is present, whether what is stored as a result of Step 6 of the Telecontrol system is regarded as one signature, being the Sample Number x 6 x 4 bit values, or as the Sample Number of signatures, each of 6 x 4 bit values.  Arbitron says that, as a matter of English, it is possible to regard that result as 6 x the Sample Number x 4 bit values.  Arbitron says that Claim 1 dictates, by way of defining the groups and the signature, that they relate to successive instants of time and they are derived from, or based upon, the comparison between two groups respectively formed at the successive instants of time.  Thus, Arbitron says, Integer D is present in the Telecontrol System. 

19. Telecontrol contends that, when Claim 1 is read as a whole, it is clear that the signature that is to be formed in Integer D is to be a signature characterising the audio broadcast signal.  It follows, Telecontrol says, that the signature must encompass each of the predetermined frequency bands and must represent the outcome of the comparison of at least two groups of values of such bands, where the groups are displaced in time.

20. According to Integer D, the signature must be “formed”.  The body of the Specification provides as follows:

    The produced audio signature and its corresponding mask word for each frame interval are thereafter supplied from the audio digital signal processor… (Emphasis added)

    Thus, the audio signature is produced and then supplied.  That is to say, the process must actually create a signature.  It is not sufficient that it might be possible, from a data array, to identify values with common characteristics, some of which are “differenced” and then to identify subsequent data arrays that contain, among other values, those differenced values.  Telecontrol says that it is the essence of Claim 1 that a signature is produced by following the method of the claim.  Thus, Telecontrol says, Integer D must be construed as requiring the actual formation of an identifiable signature “based upon the comparisons of the first and second actual, formed groups of said plurality of frequency band values”.

21. The words of Integer D require that the signature be formed based on the comparisons of the first and second groups of frequency band values.  An actual signature must be so formed.  Telecontrol says that the Claims, read in the context of the Specification as a whole, require that there must be an actual product created from the operation of Integers B and C and that it must encompass each of the predetermined frequency bands and represent the outcome of the comparison of at least two groups of values of such bands, where the groups are displaced in time.

22. Telecontrol says, however, that its system does not perform Integer D.  No such signature is formed.  As I have said, while it might be possible, within a one-dimensional data array to identify values with common characteristics, some of which are differenced, and then at a later point in the processing of that single data array, identify amongst other values, those differenced values, spaced the Sample Number of 4-bit values apart, that does not satisfy the requirements of Integer D.

23. The only embodiment described in the Specification is the direct consequence of a comparison that delivers a binary outcome to the question:

    Are the THEN values bigger or smaller than their counterpart NOW values?

    In the Telecontrol system, the differencing operation performed on the sequence of values that represents a snap shot of the signal in each band produces a time sequence that is more compact by eliminating the constant part of the signal.  By contrast, the Specification and the Claims of the Patent involve taking two snap shots, displaced in time, of the complete group of bands and comparing differences between the groups to produce a signature.

    Claims 4 to 10

24. Arbitron contends that, on the basis of the matters outlined above in relation to Claim 1, Claim 4, which is for a system, is also infringed.  Claims 5 and 8 refer expressly to including in the signature “data produced from the comparisons of the first and second groups”.  If necessary, Arbitron says that it is even clearer that the values in the Telecontrol system are “produced from” its differencing step. 

25. Claims 6 and 9 express the step or means of comparing as “producing different values representing differences between the first and second frequency band values”.  Arbitron says that that reads directly on to Telecontrol’s differencing step.

26. Claims 7 and 10 combine both of the additional integers.  It follows, Arbitron says, that those claims are also infringed.

    Conclusion as to Infringement

27. I do not consider that the Telecontrol system and device infringe Claim 1 of the Patent.  As I have indicated above, Telecontrol has not established that, as a matter of construction, Claim 1 and the other Claims of the Patent should be construed narrowly so as to be restricted to the preferred embodiments described in the body of the Specification.  Nevertheless, I am not persuaded that the Telecontrol system and device exhibit all of the integers of Claim 1 of the Patent.

28. It may be that there is a similarity in some of the processes employed in the Telecontrol device.  However, the essence of the invention claimed in Claim 1 is the production of a signature by the steps set out.  While the Claims are not to be constrained by reference to the preferred embodiments, the body of Specification is nevertheless relevant in explaining the claimed invention.  That is to say, the Claims must be fairly based on the matter described in the body of the Specification.  The preferred embodiments described in the Specification inform the Claims:  they add flesh to the skeleton of Claim 1. 

29. Thus, the essence of Integer D is that the signature is formed by being based upon the comparisons of groups of frequency band values.  The Telecontrol system does not involve groups of frequency band values in the way prescribed by Integer C of Claim 1.  The concept of comparing required by Integer C is not without difficulties.  However, the Telecontrol system does not produce values grouped across frequency bands at a common instant of time as is required by Integer C.  I am not persuaded that the differencing step in the Telecontrol system can be equated to the comparing of groups of frequency band values as is required by Integer C.  That is sufficient to conclude that the Telecontrol device, operating as described above, does not infringe Claim 1 of the Patent.

30. It follows that the Telecontrol device and system do not infringe Claim 4.  Since Claims 5 and 6 are derived from the method of Claim 1, and Claim 7 is derived from the method of Claim 6, there is no infringement of Claims 5, 6 or 7.  The system of Claims 8 and 9 is based on Claim 4 and the system of Claim 10 is based on Claim 9.  It follows that none of Claims 8, 9 or 10 is infringed.  Arbitron does not assert that Claim 2 or Claim 3 is infringed by the Telecontrol system or device.

    CONCLUSION

31. It follows from the conclusions set out above that Arbitron’s claims for relief in respect of alleged infringement by Telecontrol must be dismissed.  It also follows that Telecontrol’s cross-claim for revocation of the claims of the Patent fails and must be dismissed.  Having regard to the highly technical nature of the dispute and the fact that the proceeding has involved the examination of confidential material concerning Telecontrol’s system, I made available to the legal representatives of the parties my reasons in provisional form.  I directed that, after the legal representatives had had a reasonable opportunity to consider the provisional reasons, they indicated whether there were any parts of the reasons that should be kept confidential and to indicate any technical aspects of the subject matter of the reasons that required amendment.  That exercise has been carried out and a number of amendments were made to the provisional reasons as a consequence. 

    SCHEDULE 1: THE DRAWINGS OF THE PATENT

SCHEDULE 2: DESCRIPTION OF THE DRAWINGS

1.Figure 1 illustrates a system for monitoring a continuous stream of broadcast signals.  The claimed improved methods and apparatus are implemented at the local sites (16) of the system shown in Figure 1.  Each local site is adapted to receive an RF signal from, for example, an antenna (18) or a cable television head end station and is capable of recognising and identifying known broadcast segments by date, time, duration, channel and other desirable information.

2.Figure 2 illustrates one of the local sites in block form.  Each of the RF broadcast converters (24) receives television broadcast signals over a respective channel and demodulates the received signals to provide base band, video and audio signals.  The video and audio signals are thereafter supplied to the segment recognition subsystem (26) in which frame signatures for each of the video and audio signals are generated, which are thereafter compared with stored key signatures to determine whether a match exists. 

3.Figure 3 illustrates the data flow for a typical matching operation.  One of the converters (24) receives a desired channel of broadcast signals which are supplied as base band video and audio signals to the segment recognition subsystem (26).  That subsystem includes a plurality of channel boards (402), one for each channel monitored by the local site (16), each of which serves to generate a corresponding frame sub-signature and mask word for each frame of the base band video signal.  In addition, each channel board generates a frame sub-signature and mask word for each interval of the audio signal corresponding with a frame of the video signal and having the same format as the video sub-signatures and mask words.

4.Figures 7A and 7B are flow diagrams representing the audio signature generation assembly (250) (Assembly) described in the Audio Signature Generation section of the specifications.  The Assembly is incorporated into a channel board that monitors a single television channel of interest received by the RF antenna.  The signal received by each channel board is converted to a baseband audio signal.  The baseband audio signal is then input to the Assembly.  The Assembly processes the electrical signal and extracts a signature representing that signal.  Figure 7A illustrates the four components of the Assembly diagrammatically.  Each of those four components is made up of subcomponents, details of which appear in Figure 7B. 

5.Figure 8 illustrates diagrammatically the sequence of processing steps performed by the Transformation and Signature Extraction Module (206/264).  The function and purpose of the module 206 is summarised in the specification.  That is, it “utilizes a Fast Fourier Transform process (FFT) for generating audio frame signatures and corresponding mask words.”  The processing “is synchronized to the corresponding video fields such that a complete processing sequence is repeated every video frame”. 

SCHEDULE 3: THE CLAIMS OF THE PATENT

1.           A.          A method of producing a signature characterizing an audio broadcast signal for use in broadcast signal recognition, comprising the steps of:
  B.          forming a plurality of frequency band values each representing portions of said audio broadcast signal within respective predetermined frequency band;
  C.          comparing each of a first group of said plurality of frequency band values with a respective one of a second group of said plurality of frequency band values representing portions of said audio broadcast signal within the same respective predetermined frequency brand, each respective one of the second group of said plurality of frequency band values representing portions of said audio broadcast signal at least a part of which were broadcast prior to the portions of said audio broadcast signal represented by the corresponding one of said first group of said plurality of frequency band values; and
  D.          forming said signature based upon the comparisons of the first and second groups of said plurality of frequency band values.

2.           The method of claim 1, wherein the step of forming a plurality of frequency band values comprises forming first frequency band signals each representing a characteristic of said audio broadcast signal within a respective predetermined frequency band, and transforming each of said first frequency band signals to a corresponding one of said plurality of frequency band values based upon at least one other first frequency band signal.

3.           The method of claim 2, wherein the step of forming said first frequency band signals comprises forming a plurality of power level signals each representing a power level of said audio broadcast signal within a respective predetermined frequency band, and the step of transforming said first frequency band signals comprises dividing each of said plurality of power level signals by a linear combination of others of said first frequency band signals.

4.           A system for producing a signature characterizing an audio broadcast signal for use in broadcast signal recognition, comprising:
  means for forming a plurality of frequency band values each representing portions of said audio broadcast signal within respective predetermined frequency band;
  means for comparing each of a first group of said plurality of frequency band values with a respective one of a second group of said plurality of frequency band values representing portions of said audio broadcast signal within the same respective predetermined frequency band, each respective one of the second group of said plurality of frequency band values representing portions of said audio broadcast signal at least a part of which was broadcast prior to the portions of said audio broadcast signal represented by the corresponding one of said first group of said plurality of frequency band values; and
  means for forming said signature based upon the comparisons of the first and second groups of said plurality of frequency band values.

5.           The method of claim 1, wherein the step of forming said signature comprises including in the signature data produced from the comparisons of the first and second groups of said plurality of frequency band values.

6.           The method of claim 1, wherein the step of comparing the first and second frequency band values comprises producing difference values representing differences between the first and second frequency band values.

7.           The method of claim 6, wherein the step of forming said signature comprises including in the signature data produced from the difference values.

8.           The system of claim 4, wherein the means for forming said signature comprises including in the signature data produced from the comparisons of the first and second groups of said plurality of frequency band values.

9.           The system of claim 4, wherein the means for comparing the first and second frequency band values comprises producing difference values representing differences between the first and second frequency band values.

10.         The system of claim 9, wherein the means for forming said signature comprises including in the signature data produced from the difference values.

SCHEDULE 4: REPRESENTATION OF THE TELECONTROL SYSTEM

SCHEDULE 5: BLOCK DIAGRAM OF CLAIM 1 OF THE PATENT

SCHEDULE 6: BLOCK DIAGRAM OF SEIKO PATENT

SCHEDULE 7: BLOCK DIAGRAM OF TRT PATENT

I certify that the preceding two hundred and seventy-three (273) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:       31 March 2010