CareFusion 303, Inc.
[2021] APO 9
•26 February 2021
IP AUSTRALIA
AUSTRALIAN PATENT OFFICE
CareFusion 303, Inc. [2021] APO 9
Patent Application: 2014268799
Title:Component based aggregation of medical orders
Patent Applicant: CareFusion 303, Inc.
Delegate: Dr N. R. Madsen
Decision Date: 26 February 2021
Hearing Date: 14 September 2020, via videoconference
Catchwords: PATENTS – section 45 – examiner’s objection – whether invention is a manner of manufacture – whether claims are inventive – ordering medications – aggregation of orders from medical devices and adjacent display of related orders – invention in substance directed to a mere scheme – claimed invention not a manner of manufacture – opportunity to amend.
Representation: Patent attorneys for the applicant: Michelle Catto, Manuel Schmidt and Rachel Hooke from FB Rice
IP AUSTRALIA
AUSTRALIAN PATENT OFFICE
Patent Application: 2014268799
Title:Component based aggregation of medical orders
Patent Applicant: CareFusion 303, Inc.
Date of Decision: 26 February 2021
DECISION
The claims of the application, as proposed to be amended, do not define a manner of manufacture. While I do not immediately see any subject matter of substance in the body of the specification from which valid claims could be drafted to overcome this finding, I will provide the applicant with an opportunity to amend the specification as the hearing and submissions did not address the specification in its entirety.
REASONS FOR DECISION
BACKGROUND
1. CareFusion 303, Inc. (“the applicant”) filed patent application 2014268799 on 19 May 2014. The application was filed as PCT application PCT/US2014/038654 based on US application 13/901487 having an earliest priority date of 23 May 2013. Examination was requested on 12 April 2018 and the application was subjected to four examination reports. In those reports, the examiner has maintained an objection that the claims of the application, including claims as proposed to be amended, do not define a manner of manufacture, and that the claims lack an inventive step. The applicant subsequently requested to be heard.
2. The present application is governed by the Patents Act 1990 (“the Act”) as amended by the Intellectual Property Laws Amendment (Raising the Bar) Act 2012 (“the Raising the Bar Act”) as the application was filed after 15 April 2013. Thus, the standard of proof that applies in the present case is the balance of probabilities (subsection 49(1)). I must accept the application if satisfied on the balance of probabilities that the application complies with the Act. If I am not so satisfied, then I can refuse the application.
3. The final date for acceptance of the application was 19 July 2020, however paragraph 13.4(1)(g) of the Patent Regulations is available to extend the time for gaining acceptance to 3 months (or longer if appropriate under sub-regulation 13.4(3)) from the date of the present decision.
SPECIFICATION
4. The alleged invention relates to the aggregation of medication orders on the basis of components of such orders. As a background, a healthcare facility such as a hospital may include a pharmacy and this pharmacy may formulate medications. An order for a medication may indicate one or more component medications that are required for formulating the ordered medication that a pharmacy technician will need to retrieve. Any excess component remaining in a container may be disposed of which can lead to increased costs and wastage. The invention addresses these issues of effective medication formulation and potential avoidance of wastage via a computer implemented method involving a particularly generated queue listing on a display wherein similar medication orders are displayed adjacently on a display screen. Paragraph [0004] of the specification is a neat summary of this concept.
The disclosed subject matter also relates to a system for component based aggregation of medication orders. The system includes one or more processors and a memory including instructions that, when executed by the one or more processors, cause the one or more processors to: display a queue listing a plurality of medication orders to be prepared, each of the plurality of medication orders indicating one of a plurality of component medications, receive a selection of a first medication order of the plurality of medication orders listed in the queue, wherein the first medication order of the plurality of medication orders indicates a first component medication of the plurality of component medications, determine a second medication order of the plurality of medication orders listed in the queue that indicates the first component medication of the plurality of component medications, and reorder the displayed queue such that the second medication order of the plurality of medication orders is listed adjacent to the first medication order of the plurality of medication orders.
5. The specification then discusses the invention with respect to FIGs 1-6 noting at [0014] that the detailed description includes specific details for the purpose of providing a thorough understanding of the subject technology, also noting that it will be clear and apparent to those skilled in the art that the subject technology is not limited to the specific details in the specification. FIGs 1 and 6 are depictions of the arrangements of technology that may be used to implement the claimed invention. FIG. 1 is discussed in paragraphs [0016]-[0028]. In summary, the networked arrangement includes a range of healthcare devices 130 that may be any device that may facilitate providing healthcare and/or may provide healthcare ([0022]). These devices communicate via the network to computers in a medication storage area and medication preparation area. Also connected to the network are alternative computing devices referred to as a physician order entry system (POE) and pharmacy information system (PIS). FIG. 6 is a depiction of the computer elements that may be present at any of the network connected computers depicted in FIG. 1. As such it appears that each of the elements of FIG. 1 represents standard technological architecture connected over any type of network.
6. The healthcare devices in FIG. 1 may send a replenishment signal such that medication orders can be filled. Such an order may be, for example, a new intravenous (IV) bag containing a medication such as a saline solution ([0027]). Orders in the medication storage area may be aggregated into batches that have a common component and an amount of required component medication to fill a batch may be calculated ([0029]). Containers may be scanned in the medication storage area to record the identification of inventory being removed from storage ([0030]).
7. The invention is further described with reference to the presentation of certain information on a computer in the medication preparation area, 140B. FIG. 3 shows a flow diagram illustrating the receipt of orders to be prepared, these orders indicating components that make up each order. The orders are then displayed on a computer in a preparation queue (at 304). In block 306, the electronic device receives an indication that a medication including a first component is being prepared. If there is a second order listed in the queue that includes the first component then it is decided to reorder the display so that the second order is listed adjacent the first.
8. After discussing specific embodiments that focus upon the filling of specific orders involving particular medicines (eg Vancomycin), the description ends with a number of paragraphs that discuss the standard construction and function of computer technology in somewhat acute detail ([0054]-[0063]).
9. The specification, as presently proposed to be amended, ends with 20 claims. Claims 1, 12 and 15 are independent claims. Claim 1 as currently proposed to be amended on 19 June 2020 reads as follows, and is representative of claims 12 and 15:
A method for generating a queue of component based aggregation of medication
orders, the method comprising:
receiving, by an electronic device, a plurality of medication orders, at least some of the plurality of medication orders being received from one or more healthcare devices remote from the electronic device in the form of a replenishment signal and indicating a first component medication or a second component medication to be formulated into a medication for delivery, wherein the one or more healthcare devices include at least one of an infusion device, a drug delivery device, a dispensing device, a monitoring device, a respiratory device, and a medical waste device;
aggregating, from the plurality of medication orders, by the electronic device responsive to at least receiving the replenishment signal, a first batch of medication orders that each indicate the first component medication and a second batch of medication orders that each indicate the second component medication;
determining, by the electronic device responsive to at least the aggregating, a first amount of the first component medication to be used to formulate the first batch of medication orders and a second amount of the second component medication to be used to formulate the second batch of medication orders;
generating for display, by the electronic device, a queue that lists the first batch of
medication orders and the second batch of medication orders;
providing for display on a display screen, by the electronic device, an indication of the first amount of the first component medication and the second amount of the second component medication to be used to formulate the first batch of medication orders and the second batch of medication orders, respectively;
receiving an indication that a medication container associated with a first medication order of the first batch of medication orders listed in the queue was scanned;
receiving, based on the indication that the medication container was scanned, a selection of the first medication order listed in the queue and displayed on the display screen, wherein the first medication order indicates the first component medication;
determining, based on the selection of the first medication order, a second medication order that also includes the first component medication;
reordering the queue, by the electronic device responsive to the scanning and receiving the selection of the first medication order, such that the first medication order and the second medication order are listed adjacent to one another and move up to the top of the queue so as to become visible on a display screen; and
providing, by the electronic device, the reordered queue for display on the display screen.
10. There appear to be no issues in construing the scope of claim 1. It is clearly directed to the generation and presentation of a queue of aggregated orders that are required to be filled by a pharmacy technician. Initially, orders for medication are received at a non-descript electronic device. At least one of these orders is received from at least one health care device and this order contains within it some kind of information representing a component required in the medication. The claim limits the one or more healthcare devices to one of an infusion device, a drug delivery device, a dispensing device, a monitoring device, a respiratory device, and a medical waste device, but I do note that the specification makes it clear that “generally any device that may facilitate with providing healthcare and/or may provide healthcare” may be equally suited ([0022]).
11. In response to receiving an order from a medical device, the electronic device aggregates the orders into a first batch of medication orders that each indicate a first component of medication required and a second batch that indicates a second component. As a result of this aggregation, a calculation is performed to determine how much of the first and second components is required to fill the orders. On the display of the electronic device is then shown an indication of the amount of first and second component required to fill the orders.
12. Following this display, an indication is received that a container associated with a first order of the first batch of orders listed in the queue has been scanned. This indication leads to the selection of the first medication order listed in the queue and displayed on the screen. This first medication order lists the relevant first component medication.
13. Following the selection of a first medication order, a second medication order is identified that also includes the first component and the queue is reordered such that the first medication order and the second mediation order are listed adjacent to one another and move up to the top of the queue so as to become visible on the display screen.
14. In essence, it appears that the claim is directed to the receipt of orders, potentially from a medical device, wherein orders a batched according to component medicines and required volumes of component medicines are displayed. An order is selected following the scanning of a medication container relevant to the order and then a reordering is performed of the queue in order to list a second order visibly adjacent to the first order. It appears that the claimed invention can assist a pharmacy technician in timely filling of orders while potentially reducing the chance of wastage of component medications as discussed in the specification ([0002]). It would appear that a benefit of potentially reducing wastage stems from the fact that in formulating a batch of orders, a small amount of component medication may be left in a container, which a pharmacy technician may, decide to dispose of. In this regard, paragraph [0032] of the specification discusses that the preparation of similar medical orders together can mean that one can minimise any excess amount of component medication that is wasted, e.g. material left unused after certain ordered medications are prepared (see also [0015]). By providing such information as to further relevant orders to the technician, the technician can be better informed so as to decide not to dispose of the excess component, but to save it to fill a further order. Also, the specification discusses at [0037] that one can minimise wastage by determining whether returned medications have expired and further determining whether this returned medication can be reused. Reduced wastage can be achieved by the prioritised selection of the returned medication over any component medications required for a particular batch of orders because the returned medication is likely to expire sooner. This can clearly lead to cost savings.
MANNER OF MANUFACTURE
15. In National Research Development Corporation v Commissioner of Patents (“NRDC”), [1959] HCA 67, (1959) 102 CLR 252, the High Court provided a statement of the law in this regard. At page 275:-
“… a process, to fall within the limits of patentability which the context of the Statute of Monopolies has supplied, must be one that offers some advantage which is material, in the sense that the process belongs to a useful art as distinct from a fine art …- that its value to the country is in the field of economic endeavour”.
16. The High Court though was not laying down a precise formulation that can be applied unthinkingly. In D’Arcy v Myriad Genetics Inc (“Myriad”), [2015] HCA 35, at [23]:
“This Court in NRDC did not prescribe a well-defined pathway for the development of the concept of ‘manner of manufacture’ in its application to unimagined technologies with unimagined characteristics and implications. Rather, it authorised a case-by-case methodology.”
17. That case-by-case approach must have regard to the substance of the claimed invention, not simply the form of the claim. The point was made succinctly in the Myriad case by Gageler and Nettle JJ. At [144]:-
“Whatever words have been used, the matter must be looked at as one of substance and effect must be given to the true nature of the claim.”
18. Thus, it is clear that the assessment as to patentable subject matter in this context requires a consideration of the substance of the invention. To this point, in Sequenom, Inc. v Ariosa Diagnostics, Inc. [2019] FCA 1011, Beach J determined that non-invasive prenatal genetic testing based on maternal blood sampling was patent eligible subject matter, by first identifying what the substance of the invention is, in each relevant claim noting that:
“Myriad confirms that the starting point for the resolution of the ‘manner of manufacture’ issue is the identification of what in substance each relevant claim is for. And relevant to this inquiry is the definition of the invention, which in turn depends upon the construction of the relevant claims read in light of the specification as a whole and the relevant prior art.”
19. To further guide the determination of patentable subject matter in the context of computer implemented inventions, a range of principles have been developed. The principles of law that apply to the present matter are substantially uncontroversial, being well summarised in the decision of the delegate in Aristocrat Technologies Australia Pty Limited [2016] APO 49. There the delegate, at [35], sets out relevant considerations for patentability of inventions involving computer implementation arising from the Full Federal Court decisions of Commissioner of Patents v RPL Central Pty Ltd [2015] FCAFC 177; (2015) 328 ALR 458 (RPL Central); and Research Affiliates LLC v Commissioner of Patents [2014] FCAFC 150; (2014) 227 FCR 378 (Research Affiliates):
“I conclude that it is relevant to consider a range of matters. Without seeking to be exhaustive, these include:
· there must be more than an abstract idea, mere scheme or mere intellectual information;
· is the contribution of the claimed invention technical in nature;
· does the invention solve a technical problem within the computer or outside the computer;
· does the invention result in improvement in the functioning of the computer, irrespective of the data being processed;
· does the application of the method produce a practical and useful result;
· can it be broadly described as an improvement in computer technology;
· does the method merely require generic computer implementation;
· is the computer merely an intermediary or tool for performing the method while adding nothing of substance to the idea;
· is there ingenuity in the way in which the computer is utilised;
· does the invention involve steps that are foreign to the normal use of computers; and
· does the invention lie in the generation, presentation or arrangement of intellectual information.”
20. The recent Full Federal Court decision in Commissionerof Patents v RoktPte Ltd (“Rokt”) [2020] FCAFC 86 confirmed and applied these principles. While not explicitly identified by the Australian Courts, it appears a sensible approach consistent with the above principles for considering patentability, to consider whether the invention constitutes a technical solution and/or solves a technical problem. Such an approach was applied by the applicant in submissions for this matter.
21. Following the Rokt decision, the decision of Burley J in Aristocrat Technologies Australia Pty Limited v Commissioner of Patents (“Aristocrat ‘20”) [2020] FCA 778 at [91] formulated a two-step approach to considering patentability that can be viewed as follows:
1) Is the claimed invention for a mere scheme or a business method of the type that is not the proper subject of letters patents… if yes then,
2) Is the computer-implemented method one where invention lies in the computerisation of the method…
22. In addressing the first question, Burley J turned to the idea of a “machine of particular construction” at [98] in finding that an electronic gaming machine comprising a specific set of physical features was directed to a manner of manufacture (my emphasis added):
“…the invention may be characterised as a machine of particular construction which implements a gaming function… Simply put the machine that is the subject of the claims is built to allow people to play games on it. That is its only purpose… physical and virtual features of the display, reels, credit input mechanism, gameplay mechanism and game controller combine to produce the invention. It is a device of specific character.”
23. The present invention and the submissions presented by the applicant focus upon the nature of the interface and the benefits provided. Inventions involving information presented on a screen forming an interface with particular functions were addressed in decisions that were found to be a manner of manufacture in Aristocrat Technologies Australia Pty Limited [2016] APO 49 (Aristocrat ’16) and Hagenuk Marinekommmunikation GmbH v R F Products, Inc [2017] APO 58 (Hagenuk), whereas inventions in Bally Technologies ANZ Pty Ltd [2017] APO 14 (Bally) and Encompass Corporation Pty Ltd v InfoTrack Pty Ltd [2019] FCAFC 161 (Encompass) were found to be unpatentable.
Examiner’s objection
24. The examiner maintains objection under the ground of manner of manufacture in his fourth report. In the examiner’s report, reference is first made to Aristocrat ‘16 as follows:
“I disagree with the applicant’s view that the present invention should be found to be patentable subject matter in line with Aristocrat 2016… In Aristocrat 2016 the contribution was found to lie in the particular arrangement, which gave rise to a practical and useful result (physical effect), being the ability to select a game denomination and game in a single selection. The particular interface arrangement was not known to gaming machines, and the contribution was found to result in an improved gaming machine.
By contrast, it is evident from a review of the current specification, and the lack of technical detail disclosed therein, that the claimed invention does not contribute any technical ingenuity with respect to ‘how’ the queue is being automatically ordered when a medical container is scanned.”
As such, known computing techniques are being used to arrange particular information (medication orders) in a particular order based on user input (scanning of containers), and presented to a user. The contribution, with respect to this aspect of the claimed invention, appears to lie in a (sic) the ordering/arranging of information in a queue such that orders with the same component medications are grouped together and placed at the top of the queue. Any benefit resulting from this is considered to be limited to improvements in the process/scheme for formulating medications, such as a potentially more effective/efficient use of component medications to reduce wastage. This is not considered to result in a physical effect akin to the user interface arrangement of Aristocrat.”
25. Similar arguments are made with respect to an assertion by the applicant that the feature of updating orders based on the automated replenishment signal confers patentability.
“The present specification lacks the technical detail with respect to ‘how’ the automated replenishment signal is generated or used. Merely transmitting a replenishment signal when medications need to be replenished does not contribute any technical ingenuity.”
26. The examiner also points to their characterisation of the invention noting that he does not consider that patentability has been determined merely on the basis of an isolated inventive concept as was warned against in Aristocrat ’20, but also involves consideration of the specification as a whole.
Consideration of specific submissions
27. The applicant’s overarching submission is that the claimed invention is not in substance a mere scheme, because the claims define a technical contribution to the art by way of providing a technical solution to a technical problem. Thus, consistent with my analysis of the specification and the generic nature of the technological components used, there is no alleged device of specific character or machine of particular construction present in the claims to warrant consideration of the claimed invention in view of Aristocrat ’20. It is clearly most appropriate to turn to the principles of RPL Central and Research Affiliates to consider the claimed subject matter.
28. Important to this analysis is the identification of the substance of the invention. It appears that there is little dispute in the identification of the substance of the invention in alignment with the process identified in FIG. 3. The applicant submits that the technical problem is solved via the claimed automatic reordering of the queue in the form of an improved user interface. The reordering and functioning of information on the claimed display can be summarised as follows, being the substance of the invention (a substantially identical summary was provided by the applicant in their submissions):
· Receiving a plurality of medication orders to be prepared that indicate component medications (there being at least two different component medications)
· Aggregating first and second batches of orders associated with a first component medication and second component medication, respectively, and generating a queue that lists the first and second batches
· Following aggregation, determining, and displaying how much of each component is required for first and second batches
· Receiving an indication that a medication container associated with a first medication order of the first batch listed in the queue was scanned
· Receiving, based on the indication that the medication container was scanned, a selection of the first medication order listed in the queue, wherein the first medication order indicates the first component medication
· Determining, based on the selection of the first order, a second order that also includes the first component medication, and
· Reordering the queue as a result of the scanning and selection of the first medication order, such that the first and second medication orders are listed adjacent one another and move up to the top of the queue so as to be shown on the display screen
Does the claimed invention solve a technical problem?
29. The applicant submits that the claimed invention solves the following technical problem:
“It will be appreciated that a multitude of medication orders may be received at any one time, with some orders having the same or similar medication components. Assuming that a user of the system could properly identify orders having common medication components, to maximise efficiency, minimise waste and deliver urgently needed medications on time, the user must prepare orders requiring the common medication components simultaneously. However, the relevant orders may not be visible to the user on the screen due to limited physical size of the screen. As such, the user may need to manually search or scroll to find and select orders compatible for simultaneous preparation. Such manual search requires multiple inputs from the user and therefore requires system resources to process said user inputs.”
30. It is clearly true that a large number of medication orders could be received in a short period of time and that these orders may need to be filled using a variety of component medications. At times, multiple orders will be received requiring the same components. To fill a handful of orders requiring the same component medication, common sense would dictate that one should fill these orders around the same time. This would mean that there would be logistical efficiency gains in retrieving ingredients from storage and also the potential would be provided to avoid disposal of small amounts of component medications left in containers because there is less need to “wait around” for another order that requires the same component medication. In this regard I have no doubt that there are issues potentially addressed in relation to process efficiency and material wastage by the substance of the invention. However, at this point of the analysis, I am yet to delve into specific consideration of the nature of the issues addressed by the claimed invention as a matter of substance, as to whether the problem and/or the solution are technical as submitted by the applicant
31. It is at this juncture that the applicant suggests that there is a limitation or problem that is technical in nature in that there is limited screen real estate to show sufficient and relevant information. This is due to the fact that there may be too much information present in the collection of all orders to effectively show all orders on the screen, and to find similar orders using the same component medication a user may have to go searching for this information, which they will do by performing manual inputs such as scrolling. This scrolling consumes processing resources.
32. I am not satisfied that the problem that the claimed invention solves can be characterised as being technical in accordance with the applicant’s submission. Firstly, the claimed invention does not improve the manner of use of screen real estate in any material or technical sense. The claimed invention in this regard is characterised by the nature of the information presented on the screen. The substance of the invention does not solve a problem in improving the amount of information that can be shown on a screen, rather it merely selects which pieces of information to present to the user on the basis of content alone. Furthermore, the claimed invention clearly does not improve the technical process of scrolling or computer processing. An example of an invention that may be considered to address a technical problem involving screen real estate is contained in the Patent Examiner’s Manual of Practice and Procedure at 2.9.2.7 where discussed is a gaming machine display involving a spinning reel game of three-dimensional reels that spin vertically along, and rotate horizontally around, the reel. Here it can be argued that this provides a material advantage or technical effect of optimised/improved use of screen space because a problem of displaying more information in a specified area is addressed by the claimed solution. This is clearly not the case in the presently claimed invention. The problem solved by the present invention appears to relate to the presentation of improved information to a pharmacy technician to allow them to organize their activities in following the provided order for work.
33. The issue of manually scrolling and subsequent use of processing resources to find relevant information from a large compilation of information is not one of any technical limitations in computer technology, but a problem merely related to the volume of information and the need to exert “effort” or “activity” to find relevant information. An analogy might be made with a book where relevant information is summarised and placed on the first page of said book. Such ordering of information minimises the amount of page turning, and mental processing required to find the relevant information. In both cases, the issues addressed relate to the arrangement of cognitive information based on its content alone to avoid the need to “go looking”. These issues appear akin to the those addressed by inventions historically well traversed and succinctly discussed as unpatentable in Virginia-Carolina Chemical Corp's Application [1958] RPC 35 because the problems solved by such inventions relate to the information per se that happens to be provided, and not any particular manner of “mechanically” arranging information. Examples of inventions that do take advantage of a particular “mechanical” arrangement involving information include: Cooper's Application (1902) 19 RPC 53, in which one or more spaces was left across the printed page of a newspaper where the paper was to be folded, in order to enable the paper to be read when folded, and this was held to be patentable; and Rhode's Application [1973] RPC 243, in which a vehicle speedometer adapted to show "impact speed" was found to be patentable.
Does the claimed invention provide a technical solution?
34. The applicant also submits that the claimed invention provides a technical solution by way of an improved user interface.
“When a first medication order is selected, a compatible second medication order is automatically identified and the queue is automatically reordered such that the first and second medication orders are made visible on the screen and presented adjacent one another at the top of the screen.”
“The interface involves a new degree of functionality in that multiple actions may be affected with a single selection… That is, a single action not only selects the first medication order, but triggers identification of a second medication order and re-ordering of the queue to make both the first and second medication visible on the screen and positioned adjacent to one another at the top of the screen.”
“Such improved functionality in an interface does not characterise the display purely by the content of the information presented. Rather, the new functionality provides an improvement in the effectiveness and efficiency of use of the interface. This is a practical and useful result.”
35. Following this, the applicant seeks to draw analogy between the presently claimed invention and the inventions of Aristocrat ’16 and Hagenuk where improvements were found in the functioning of a user interface which allowed for multiple actions to be achieved in a single selection, increasing the efficiency of the user interface. At the hearing, I provided the applicant with further apparently relevant decisions in Bally and Encompass and provided the applicant with an opportunity following the hearing, to provide submissions in relation to these decisions. It appeared clear from the discussion at the hearing and further so from the submissions filed by the applicant after the hearing, that determination as to whether there is a technical solution in the form of an improved interface is reasonably well guided by these four decisions.
Aristocrat ‘16
36. While implemented in what would be viewed as a general-purpose touch sensitive display, the claimed invention provides a particular arrangement of information on the touch sensitive display. A plurality of game selection options of an electronic gaming machine are provided as image elements, and associated on the display with each of those plurality of game selection image elements is a set of bet selection image elements in the form of a set of bet denominations. Selection of a single bet denomination has the effect of also selecting one of the displayed game selection elements. In this regard as noted by the delegate in his decision at [48] with my emphasis added:
“It is reasonable to view the substance of the invention as the presentation of game information in a way that allows the game and bet denominations to be selected in a single action… Here information is located in a particular position and functionality is generated by the use of this positional location to improve the gaming machine. The contribution is technical in nature, and achieves a practical and useful result.”
37. Hence, present in the claimed invention of Aristocrat ’16 is a particular structure of information on a touch screen display in the form of image elements grouped and arranged in a specific way, with functionality being provided at certain image elements. The effect being an improvement in the way of selecting games and bet denominations using a touch screen.
Hagenuk
38. The claimed invention in Hagenuk relates to a graphical user interface for displaying and controlling connections whereby a plurality of radios is connected to a plurality of antennas via a plurality of paths, through radio frequency distribution equipment. The invention as a matter of substance is most simply presented as a graphical user interface enabling change of a displayed path, including a depiction of a plurality of radios and a depiction of paths by which the plurality of radios is connected to the plurality of antennas via the radio frequency distribution communications equipment. Such an invention was considered to involve no ingenuity in the functioning of the interface but instead was considered to be an invention characterised merely by the content of the information presented, and thereby not for patentable subject matter.
39. Subsequent claims in Hagenuk introduced the feature whereby the means for changing at least one displayed path of the display simultaneously changed all displayed paths. In alternative words, the delegate pointed to a single action capable of selecting and changing a path or paths providing the further result of a simultaneous change to all paths. This improved interface control functionality appeared to improve the effectiveness and efficiency of use of an interface for quick and easy system control of communication path configurations. As forming a key aspect of the substance of the invention, claims with this improved interface functionality were considered patentable (see [59]-[61]). In summary, in Hagenuk it appears that claims were found patentable because the substance of the claimed invention comprised a materially enhanced control means having a dual function whereby one performed a single selection and change of single path using a particular control means, which also had the effect of changing all paths. This can be seen analogously to Aristocrat ’16 where improved dual function can be said to be provided to the claimed bet denomination image elements of the touch sensitive display.
Bally
40. As identified by the applicant in their submissions, Bally offers a direct comment at [55] on the distinction between the interface and its function in that case, and the invention of Aristocrat ’16. In Bally, the claimed invention also being an electronic gaming machine refers to a base wager, wherein the base wager is associated with a game play option. A player may select a game play option from the interface thereby selecting all the parameters and actions that go along with said game play option.
41. The delegate distinguished this invention from that of Aristocrat ’16 in noting:
“… the case in [Aristocrat ‘16] offered multiple choices on a touch screen of bet denominations for any one of multiple games such that a player could select both a game and a bet denomination with one touch. That is not so in the present case. In Figure 7, table 7.2 indicates different credits for five play options. The description refers to these credits as the play cost which appears to be equivalent to the base wager as defined in the claims. The appropriate base wager is locked in by correspondence with each game play option. The base wager is not a separate, selectable parameter for the player.”
42. In this regard, it appears that the claimed invention of Bally is distinguished from Aristocrat ’16 in that the options for selection are displayed and provided with functionality to simply select one of the options. While there may be many consequences to that single selection, i.e. the implementation of a game play option with a plurality of parameters, there is no improvement in the functionality of the interface. The interface simply functions to enact a selection, there being no material improvement akin to Aristocrat ’16 where for example, dual functionality is provided to bet denomination image elements to also enable game selection from the specifically depicted options. One might further note that the interface function in Bally is nothing more than normal interface function, where selection of a single button for example may inevitably have multiple consequences, these multiple consequences being grouped and “locked in” to the nature of that button. This is different to the invention of Aristocrat ’16 and Hagenuk where the substance of the inventions comprised apparent improvements in the way that the interface was configured to function.
Encompass
43. The invention in Encompass relates to generating and displaying a network representation of entities to thereby display connections between entities (the entities being for example, people and companies), determining a user-selected node of the network representation, performing a search of remote data sources to find additional information about the entity associated with the selected node, and presenting this additional information to the user by modifying the network representation. The steps of claim 1 are summarised at [28]:
a) generating a network representation by querying remote data sources
b) causing the network representation to be displayed to a user
c) in response to user input commands, determining at least one user-selected node corresponding to a user-selected entity
d) determining at least one search to be performed in respect of the corresponding entity associated with the (at least one) selected node
e) performing at least one search to determine additional information regarding the entity from at least one of a number of remote data sources by generating a search query; and
f) causing any additional information to be presented to the user.
44. Clearly in response to a user selection of a node there are a number of consequences/steps performed, these being steps d)-f). In the Encompass case, their Honours did not see any improvement in the functioning of an interface, Instead the Court concluded that the claimed invention constituted nothing more than instructions to apply an abstract idea, in which a computer was an intermediary in carrying out the steps of a method, the method being described in terms which amounted to an abstract idea or scheme ([99]). The claimed method was implemented using generic computer technology ([99]), thus it is clear the Court considered the use and functionality of the claimed interface was nothing beyond generic interface configuration and function.
Is there an “improved interface”?
45. With reference to the four decisions discussed above, the applicant first refers to Aristocrat ‘16 in submitting a distinction from Bally:
“…the present invention is more closely aligned with the invention of Aristocrat and should be likewise considered patentable. That is, the first and second medication orders are clearly each separate, selectable options by the user. In the absence of the claimed invention, the user would be required to provide additional input to the system after selection of the first order to search for a compatible second order. The invention thus provides a practical and useful effect by enabling multiple actions to be effected with a single input from the user, as is the case with Aristocrat.”
46. It is true that the first and second medication orders might be separate selectable orders on the screen. In this manner all orders could be selectable (although the claim only requires a first order of a first batch to be selectable). Thus, orders are defined as first or second based on the selection of one and subsequent reordering of another. To the degree that the invention moves a second order up to the top of the queue so as to become visible on a display screen I agree that there may be less actions that need to be taken to find the second order in the list. For example, the second relevant order in the list identified after selection of the first order may otherwise need to be found by scrolling down the screen to find this information. The triggering of actions involved in the substance of the invention includes:
·Receiving an indication that a medication container associated with a first medication order of the first batch of medication orders listed in the queue was scanned
·Receiving, based on the indication that the medication container was scanned, a selection of the first medication order listed in the queue, wherein the first medication order indicates the first component medication
·Determining, based on the selection of the first medication order, a second medication order that also includes the first component medication
·Reordering the queue responsive to the scanning and receiving a selection of the first medication order… such that the first and second orders are listed adjacent one another and move up to the top of the queue to become visible.
47. Effecting multiple actions with a single input from a user does not appear to be the clear and definable basis upon which the relevant invention of Aristocrat ’16 was considered patentable. As above, in Aristocrat ‘16 it is true that multiple actions were affected by the selection of a bet denomination (be it also a relevant game) but patentability arose further from the improved arrangement of information on the screen in regard to the positional location and association of displayed information, with specifically arranged information provided with improved function. The present invention does not appear to provide any improvement in the arrangement of information and its associated functionality on the screen to the same degree as Aristocrat ’16, but instead provides a course of action/steps taken that result from the generic selection of a first order in some non-specific way following an initial generic “scanning” of a container.
48. In this regard, a container relevant to a first medication order is scanned, and based on this scanning a first medication order listed in the queue is selected, following which a search for further orders is performed and subsequent reordering occurs. This sequence of steps appears far more akin to the steps performed in Encompass which follow the user-selection of a node corresponding to a user-selected entity, the further steps being: determining a search to be performed; performing a search to gather additional information from a number of remote data sources; and causing any additional information to be presented to a user. Clearly, such a series of steps reduces the amount of inputs that a user would be required to apply to the computer system to find information and present it on the screen.
49. However, as per Encompass, I consider the present invention does not make any material improvement to the functioning of the interface as such, as was the case in Aristocrat ’16, but instead simply applies a series of steps that are merely automated to improve the informational content of the display. The claimed invention in Encompass, and similarly the presently claimed invention, do not appear to improve interface functionality, but instead appear to amount to instructions to apply a method to the computer as an intermediary.
Following this, it appears that the relevantly claimed substance of the present invention can be characterised as identifying via scanning, a container relevant to a first order and using this identification to identify a first order in a queue, whereby following this identification of a first order, a search is performed to find a second order that is related to the first order but may not be visible to a user, this second order being subsequently shown to a user adjacent to the first order. I consider that this constitutes a scheme in which a computer technology is used as an intermediary as a matter of substance. Further submissions made with reference to Encompass and Aristocrat ’16 include:
“Here, the substance of the invention is the presentation of medication orders in a reordered way such that the first and second order are listed adjacent to one another at the top of the queue. That allows the user to formulate the first and second medication orders together without further interrogating [the] list of orders a second time. It is apparent that this would achieve a practical and useful result by simplifying the use of the computerised ordering queue by the user. As in Aristocrat ’16, here information is located in a particular position and functionality is generated by the use of positional location to improve the queuing system. The contribution is technical in nature, and achieves a practical and useful result.”
“Further we note that the invention in Encompass related to a method of displaying information related to connections between entities for the purpose of providing business intelligence. That is, the information displayed was not tied to any manner to a technical activity or physical effect. By contrast, the present invention assists the user in carrying out the technical task of preparing medication orders. In particular, the claimed system, with its improved user interface, assists the user in more quickly and easily selecting multiple medication orders for simultaneous preparation in a manner which minimises waste of medication components. This is a practical and useful effect, the likes of which was absent from the invention under consideration in Encompass.”
51. Regarding the first submission, it is true that there is no need for “second interrogation” of the list to find orders relevant to the first order. However as above, I consider this minimisation of possible further actions of scrolling/pressing buttons/searching lies merely in the use of computer technology to automate the abstract task of searching for and rearranging information for display. The automatic searching for a second order is triggered by a generic identification of a first order, in the same way that manual searching for a second order would be triggered. The function may be practical and useful but this is no more so than the invention in Encompass where there is a practicality and usefulness to the automatic updating of a network representation of entities which limits the laborious task of searching through electronic databases manually to find related entities and arrange them for display. While the result of the claims is to position information in a certain manner, there is no user interface functionality built into this arrangement consistent with Aristocrat ’16 or Hagenuk for that matter.
52. Regarding the second submission, it is relevant to note that the claims in Encompass made no reference to the type of information that the entities represented. While the description exemplified commercial information, the claims were not so limited and were found to merely constitute an abstract “idea for a program” implemented using generic computer technology. The provision of commercial intelligence, and the type of information exemplified in the description of the inventions in Encompass did not appear to affect the outcome of the Court’s decision. The claims in Encompass were broadly defined such that “entities” depicted within the network representation could be any distinct thing, be it a person, corporation, object, device or product for example.
53. While the information in the present invention may have relevance to some kind of technical process in the “manufacture” of orders, such technical processes have nothing to do with the substance of the invention. The invention is about the information of orders themselves and has nothing to do with the technical process of mixing chemicals to produce a medication. The claims themselves do not appear to produce a technical effect in improving the functioning of the relevant interface, and instead appear to provide cognitive information to allow a user to be effectively informed as to the order filling process such that they might be able to decide, if their inclination suits, to avoid throwing away materials. Any speed of filling orders appears to merely result from the use of computer technology as a tool for generic automation of tasks (i.e. searching for a second order and re-arranging the queue), there being no apparent ingenuity in the manner of automation. The invention is about the rearranging of the queue of orders, the information generated by the working of the invention is directed to a suggested sequence of filling orders, which itself is logistical or business information.
54. In summary, I do not consider there to be an improved interface present in the substance of the invention. I consider the claimed invention, the function of its interface and the effects of selection of elements on an interface to be in alignment with the claimed invention in Encompass.
Broader considerations as per RPL Central and Research Affiliates
55. The analysis above finds that I do not consider that the claimed invention solves a technical problem and that the claimed invention as a matter of substance, does not produce an improved interface. I consider the contribution to the art lies in a method for arranging and displaying orders and that this contribution is not technical in nature. The computer technology is discussed above as being merely a tool for performing the method adding nothing of substance to the idea of:
· Receiving a plurality of medication orders to be prepared that indicate component medications (there being at least two different component medications)
· Aggregating first and second batches of orders associated with a first component medication and second component medication, and generating for display a queue that lists the first and second batches
· Following aggregation, determining, and displaying how much of each component medication is required for first and second batches
· Receiving an indication that a medication container associated with a first medication order of the first batch listed in the queue was scanned
· Receiving, based on the indication that the medication container was scanned, a selection of the first medication order listed in the queue and displayed on the screen, wherein the first medication order indicates the first component medication
· Determining, based on the selection of the first order, a second order that also includes the first component medication, and
· Reordering the queue as a result of the scanning and selection of the first medication order, such that the first and second medication order are listed adjacent one another and move up to the top of the queue so as to be shown on the display screen
56. This method does not improve the functioning of any computer technology. Instead the method is characterised by the type of data that is being received and the sorting and displaying actions that are performed upon that data using generic computer technology. Scanning is performed in a generic sense to identify a container with this identification being used to begin a series of steps used to present more “relevant” and “useful” information to the user, none of these steps being foreign to normal computer operation. While I accept, like there was in Research Affiliates, a degree of practicality and usefulness provided by the substance of the invention, this is achieved via a) the use of computer technology for its well-known purpose of speed and efficiency, and b) better information is presented for a user to be more informed such that they may make better decisions about the filling of medical orders.
57. I do not consider that the provision of information such that a user may “choose” to avoid wasting material (if the appropriate conditions exist, these not being defined in the claim) can constitute a technical or material effect such as that observed in Bio-Rad Laboratories, Inc.[2018] APO 24 where the delegate found that the substance of the invention provided a material advantage of reduced material use for performance of an optimised quality control (QC) strategy noting at [55] and [57]:
“When one looks at what is involved in this optimization process, it is quite clear that the invention lies in computing a QC utilisation rate for different QC rules so that the QC rule with the lowest QC utilisation rate can then be chosen as the QC strategy as it is this QC rule that uses a minimal number of reference samples for testing while still meeting the chosen performance targets of maximum permissible final errors and maximum permissible correctible errors.”
“…when this identified QC rule is put into effect during testing, the resulting reduction in the number of tests to be carried out and the reduction in the number of reference samples that are used are, in my view, ‘artificial effects’. Furthermore the contribution of the claimed invention is clearly technical in nature…”
58. There is no similar effect provided by the present claims in the reduction of the amount of material used to perform a particular technical task. Even if the claims were narrowed to include a step where a specific calculation was made involving the volume required to fill a set of orders, suggesting certain volume containers of component medication that might be used to fill the orders with information presented that facilitated a decision to not waste or “throw out” a component medication, the substance of the invention would not be considered a manner of manufacture. Such subject matter lies in the realm of pure business logistics, a mathematical exercise in relation to the organising of human activity.
59. In summary, it appears to me that the substance of the invention is directed to a method for the generation, presentation and arrangement of logistical information, the claims not producing a technical effect nor solving a technical problem. While there are technical and scheme elements to the claimed invention, on balance, the substance of the invention lies in the scheme. Accordingly, I consider independent claims 1, 12 and 15 are not directed to patentable subject matter.
60. I have further considered each of the dependent claims. In summary, I do not see any of these claims providing subject matter to the substance of the invention such that patentability may be conferred. I briefly address the dependent claims as follows:
· Claims 2-4 relate to the selection and display of a subset of component medication containers being identified such that excess material is minimised for a particular batch of orders. This in substance amounts to a purely mental/arithmetical process for calculation and display of information with no technical or material effect.
· Claims 5, 8 and 18 are directed merely to the nature of the information presented on the screen and not to any material improvement to information display on an interface, being directed for example to display of batches adjacent and consecutively on a screen and the display of info in a pop up window.
· Claims 6, 9, 13, 14, 16 and 20 are modifications to the claimed invention that do not confer patentability relating to the mere logistics of: where information is located such as in a clean room; the order being made by a physician; and selection of an order is enabled by a healthcare professional who is preparing the order.
· Claims 7 and 17 are limited for example, to a scanning device scanning a container or label or code or barcode associated with medication that is associated with a relevant order. Clearly, such a claim uses a generic scanning device to gather data for processing that is not foreign to the normal use of computer technology.
· Claim 10 includes a medication order being generated based in part on a periodic automatic replenishment level. Such a feature is nothing more than a logistical limitation to simply order certain medications at certain times.
· Claim 11 is limited to a medication order being for an IV medication. The type of the order does not change the nature of the substance of the invention which is directed to the filling of orders of any type that require component medications.
· Claim 19, refers to a selection of a medication order in the queue to indicate that a medication order is being prepared. Such a feature merely takes advantage of the generic function of an interface to select an item to identify.
Are the claims amendable to provide patentable subject matter?
61. My analysis of the specification early in this decision provides a clear picture of the nature of the subject matter described in the whole of the specification. The claims as they currently stand are simply directed towards a system and method of generating a list. However, it appears indubitable that the claims may be amended to be directed towards a method of preparing orders, whereby that method of preparing orders will produce the result described in the specification being the minimisation of wastage. While such a method would provide a practical and useful result directly as a consequence of its performance, it appears likely that this would not disturb my finding as to the true nature of the invention and the patentability of the claims at hand. Regardless, like the situation in Rokt Pte Ltd [2016] APO 66, the nature of such an amendment was not discussed at the hearing so I will provide a period in accordance with the Regulations for the applicant to consider amendments, this period being three (3) months from the date of this decision to gain acceptance.
62. For completeness, I will also give brief consideration to the inventive step issues discussed at the hearing.
INVENTIVE STEP
63. The test for obviousness was provided by Justice Aicken in Wellcome Foundation Ltd v VR Laboratories (Aust) Pty Ltd [1981] HCA 12 at [45]; 148 CLR 262 at 286 as follows:
“The test is whether the hypothetical addressee faced with the same problem would have taken as a matter of routine whatever steps might have led from the prior art to the invention, whether they be the steps of the inventor or not.”
64. The High Court in Aktiebolaget Hässle v Alphapharm Pty Ltd [2002] HCA 59 at [51]-[53]; 212 CLR 411 at [51]-[53] approved this approach, in addition to that taken in Olin Mathieson Chemical Corporation v Biorex Laboratories Ltd [1970] RPC 157 at 187 in which Graham J had posed the question:
“Would the notional research group at the relevant date in all the circumstances directly be led as a matter of course to try [the claimed invention] in the expectation that it might well produce a useful [desired result]?”
65. The usual approach to determining inventive step is the problem-solution approach. Once the problem has been formulated and the common general knowledge and the prior art base has been determined, the question of whether the claimed solution is obvious must be addressed.
66. The examiner’s inventive step objection in the fourth report can be summarised to the extent that patent document D1 (US 2010/0094653 A1) was considered to disclose all the features of the claimed invention of claim 1 except for the one or more healthcare devices includes at least one of an infusion device, a drug delivery device, a dispensing device, a monitoring device, a respiratory device, and a medical waste device. This feature was said to be well known in the art and obvious to add to the disclosure of D1. This point was not argued by the applicant at the hearing.
67. The applicant’s submissions regarding inventive step were to the extent that some features were not disclosed in D1 and that one skilled in the art would not be directly led to include these features. More specifically the applicant submitted that the following features are not disclosed or obvious:
“a. aggregating, from the plurality of medication orders, by the electronic device responsive to at least receiving the replenishment signal, a first batch of medication orders that each indicate the first component medication and a second batch of medication orders that each indicate the second component medication;
b. determining, by the electronic device responsive to at least the aggregating, a first amount of the first component medication to be used to formulate the first batch of medication orders and a second amount of the second component medication to be used to formulate the second batch of medication orders;
c. determining, based on the selection of the first medication order, a second medication order that also includes the first component medication;
d. reordering the queue by the electronic device responsive to the scanning and receiving the selection of the first medication order, such that the first medication order and the second medication order are listed adjacent to one another and move up to the top of the queue so as to become visible on a display screen.”
68. Regarding features a. and b. the applicant submitted:
“The examiner alleges features 25a and 25b are disclosed in Fig. 6 of D1. Fig. 6 of D1 shows medication orders of the same type listed adjacent each other. However, the quantities shown adjacent the orders in Fig. 6 indicate the number of individual orders for each dose type, not a total amount of the medication component needed to formulate each batch.”
69. It is clear to me that there is an aggregation of a plurality of medical orders in Fig. 6 of D1. Furthermore, is it also clear that there is a first batch of medication orders indicating a first component medication and second batch of orders indicating a second component medication. This list inevitably arises following a replenishment signal of some type. Fig. 6 is reproduced below.
70. I do not agree with applicant that D1 fails to disclose the display of amounts required of first and second component to formulate respective batches. Present in Fig. 6 of D1 are batches of Cefazolin, Ceftazidime and Cefuroxime orders, and within those batches further specific batches of orders divided on a dosage basis. In this regard, these groupings represent batches, and each of these batches has an associated quantity of orders. This quantity provides an indication of an amount of component medication required to formulate that batch. While this quantity is not a total or precise quantity as a matter of volume or mass, it does provide an indication at least to the magnitude, and thus the amount, of component medication required to formulate that batch. Thus, the relevant feature is disclosed in D1.
71. Regarding feature c., the applicant submits that:
“The examiner alleges that feature 25c is disclosed in paragraph [0069]-[0071] of D1. While this portion of D1 describes display of information associated with a dose order, this is no suggestion that a second order having a same component medication as the selected order is identified.
72. I have reviewed the relevant parts of document D1. I cannot see a disclosure within those paragraphs of document D1 that clearly describes to me the action of selecting a particular first medication order within a batch having a further consequential step of determining a second medication order that also includes the first component medication. To this extent the relevant paragraphs appear, as submitted by the applicant, to discuss display of information associated with a particular dose order, such as protocols to follow to fill that order. Further to this, regarding feature d., having reviewed paragraphs [0054]-[0056] cited by the examiner I do not see a clear and unmistakable direction to the subsequent action involving the first and second orders identified in feature c., of reordering the list to bring the first and second orders adjacent to one another by the moving of orders to the top of the queue so as to become visible on a display screen. I do note that paragraph [0054] discusses that an operator can decide which orders to fill and select these orders with the result being the regeneration of a new “re-ordered” display, but the disclosure does not appear specific to the degree required by the claim.
73. While the features c. and d. do not at this stage appear disclosed by document D1, it may be the case that the examiner can provide further reasoning as to their disclosure or demonstrate that they are not inventive in view of document D1 as being an obvious way of identifying and sorting similar orders. Given the nature of the manner of manufacture objection above, I will refer any further consideration of inventive step to the examiner in the event of amendment to the claims.
CONCLUSION
74. I conclude that the claimed invention, as a matter of substance, is not for a manner of manufacture. In accordance with the discussion above, the application is to return to an examiner following any amendments made by the applicant for further consideration of issues of manner of manufacture and inventive step. The final date for acceptance of the application is, in accordance with 13.4(1)(g), three (3) months from the date of this decision.
Dr N. R. Madsen
Delegate of the Commissioner of Patents
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