eBay Inc. - [2020] APO 49

IP AUSTRALIA
AUSTRALIAN PATENT OFFICE
eBay Inc. [2020] APO 49

Patent Application: 2018202803

Title: Interactive venue assistant

Patent Applicant:                   eBay Inc.
Delegate:   R Bartram
Decision Date:   20 November 2020
Hearing Date:   Written submissions filed on 24 July 2020

Catchwords: PATENTS – section 45 – examiner’s objection – invention is a manner of manufacture – combination of individual features as claimed – technical solution to a technical problem – practical and useful result – application will be accepted.

Representation: Patent attorney for the applicant: FPA Patent Attorneys Pty Ltd

IP AUSTRALIA
AUSTRALIAN PATENT OFFICE
Patent Application: 2018202803

Title: Interactive venue assistant

Patent Applicant: eBay Inc.
Date of Decision: 20 November 2020
DECISION
The claims of the application, as proposed to be amended, define a manner of manufacture.

I accept the patent request and complete specification as proposed to be amended.
REASONS FOR DECISION
BACKGROUND

eBay Inc. (“the applicant”) filed patent application 2018202803 (“‘803”) on 23 April 2018. The application is a divisional application based on application 2014383030 (“‘030”). That application has lapsed. A later application 2020204072 (“’072”) was filed on 18 June 2020, the same day the request for a hearing on the ‘803 application was filed. The ‘072 application is a divisional application based on the ‘803 application. All three applications ‘030, ‘803, and ‘072 stem from a Patent Cooperation Treaty (“PCT”) application, PCT/US2014/069845 published as WO2015/126509, that entered the National Phase in Australia on 5 August 2016. The PCT application is based on a US patent application US 14/185772. The US patent application was filed on 20 February 2014 (“the priority date”).
An examination request was filed for the ‘072 application on 18 June 2020. An examination report has not been issued on that application yet.
The ‘803 application has been subjected to three examination reports, while the parent the ‘030 application had been subjected to two examination reports. In those reports, the examiner maintained an objection that all of the claims, including the claims as proposed to be amended, do not define a manner of manufacture.
The first report issued for the ‘803 application raised an objection that the claimed invention lacked an inventive step in view of an obvious combination of US2008/0132251 and US2012/0078667. Following an amendment and submissions regarding the inventive step objection, the second examiner’s report indicated the claims as amended were novel and inventive. This position did not change in the latest examination report, dated 29 May 2020, on the claims as proposed to be amended on 6 May 2020. The claims as proposed to be amended on 6 May 2020 are the same claims that are considered in this hearing.
The applicant requested to be heard on 18 June 2020. The applicant filed written submissions on 24 July 2020.
While the final date for acceptance of the ‘803 application was on 18 June 2020, patent sub-regulation 13.4(1)(g) is available to extend the time for gaining acceptance to 3 months from the date of the present decision.
SPECIFICATION
The specification, as proposed to be amended on 6 May 2020 (“the specification”), discloses that the alleged invention relates to a system and a method that uses a graphical user interface to present an augmented reality experience. It comprises location-based services to assist a user at an event, such as, but not limited to, a sports game, theatre, or concert. The display presents to the users a live view of the physical real-world environment. The view displayed can be determined based on the user’s current location. Visual guidance information is overlaid onto the real-world presentation displayed and includes directions specifying the distance and expected walking duration to their seat. The directions information may include text and numerals and may show arrows on a map that point in the direction the user should be walking. Once the device determines that the user is at their seat, the device presents additional information to the user, based on the location of the users seat, regarding at least one point of interest, such as a restaurant, retail store, or a restroom, informing the user of the directions to the at least one point of interest, wherein the user interface object displaying the directions changes based on a current time, a time to start or re-start of the event, and congestion along the route to the point of interest.
The specification acknowledges that the computer hardware and mobile equipment are disclosed as standard devices known to the person skilled in the art and the communication operations mentioned are also standard communications protocols and processes. This is disclosed in the discussions regarding figures 1 and 2 in paragraphs [0013] through to [0029]. In addition, the software may be implemented using general purpose computers and/or systems networked or otherwise as per paragraph [0030].
The specification also discloses in Paragraph [0034] known techniques are used to automatically provide the user’s location information by, for example, GPS or cell tower triangulation. Alternatively, the location information can be manually set by the user by entering in a zip code or longitude and latitude coordinates into the device. The user’s location, along with the location of the seat or a point of interest, is used to determine the directions provided by the system to assist the user to get to their desired location. It is readily apparent to a person skilled in the art that this process was well known well before the 2014 priority date of the application.
The specification clearly discloses that the time to walk to the seat, a point of interest, or back to their seat is determined by the device and displayed to the user. The description does disclose that the service provider can determine the walking speed of the user and use that information to estimate the time to get to their seat or point of interest. It is clear to a person skilled in the art that alternatively average known walking speeds could be used. Again, I consider that both techniques were well known to a person skilled in the art prior to 2014. Examples of using the average known walking speeds can be found in tourist brochures and signs that indicate the distance and time it takes to walk along a set path such as along a scenic walk, or from a person’s accommodation to tourist attractions.
It is clear from reading the description as a whole, that the device, uses congestion information to determine the route or directions for the user to get to their seat, to a point of interest, or back to their seat. However, there is nothing provided in the description as to how this information is obtained or how it is used to determine the route or directions other than the inference to avoid congestion. To understand this feature, and without any specific description as to how this information is obtained and used, the person skilled in the art must construe what this feature encompasses. Based on a brief search of the internet, crowd counting, and crowd number estimate technology was available at least as far back as 2003. It is clear from the documents available online that there are many techniques, some more complex than others, to determine crowd numbers and hence congestion, from images of defined areas. From reading the document as a whole, congestion is clearly understood to be the determination of the number of people in a crowd at a specified location. As a result, it is reasonable to assume that the person skilled in the art would understand that, in order to determine changes in the directions provided to the user, the system and method must inherently include using known congestion monitoring techniques to determine a metric for the congestion.
This is consistent with what is described as the specification clearly discloses suggesting a different route if the queue at the nearest option is too long, in order to optimise the time for the user to get to the point of interest. It is also considered reasonable that the invention described requires an ability to monitor crowds during the event to determine a congestion level during the event. Although there is not a clear description of how the congestion is monitored, I consider the person skilled in the art would, more likely than not, understand that known crowd monitoring techniques using known devices can be used. As such further description on this feature is not required for the person skilled in the art to perform the invention across the scope of the claims.
The final feature described that needs to be addressed is “the user interface object displaying the directions changes based on a current time, a time to start or re-start of the event, and congestion along the route to the point of interest.”. It is not entirely clear as to what “directions changes” the applicant intended here but it appears that the changes could be any changes in the display including changes in the directions provided including a recommended route to once again avoid congestion and optimise the route. Equally, it could be in regard to the alerts or other information that are pushed to the user via the user interface object. For the purposes of this decision I will consider that either option is possible and that the changes to the user interface object includes any changes to the information displayed to the user and the changes are to provide a better route to take to get to the desired location to avoid congestion.
The specification ends with 20 claims. Claims 1, 9 and 15 are independent claims. These claims read as follows:-
Claim 1
A system comprising:
one or more memory devices or storage components adapted to store instructions; and
one or more processors in communication with the one or more memory devices or
storage components and adapted to:
receive a seat location associated with an event, a venue and a user;
determine a location of a user device;
provide, to the user via a graphical user interface including one or more user interface objects displayed on the user device, directions to the seat location, wherein the directions are overlaid on a user interface object displaying a real-world view the user has of the venue on the user device;
provide, to the user via the graphical user interface, a walking distance and a time left to walk to the seat location, wherein the walking distance and the time left to walk to the seat location are overlaid on a user interface object displaying a real-world view the user has of the venue on the user device;
determine that the user has arrived at the seat location;
in response to the determination that the user device arrived at the seat location, provide, to the user via the graphical user interface, information regarding at least one point of interest, based the seat location; and
provide, to the user via a user interface object of the graphical user interface, directions to the at least one point of interest, wherein the user interface object displaying the directions to the at least one point of interest changes based on at least a current time, a time to a start or a re-start of the event, and congestion along a route to the point of interest.
Claim 9
A method for assisting a user at an event, comprising:
receiving, by one or more hardware processors of a service provider, a seat location associated with the event, a venue, and the user;
determining a location of a user device;
providing, to the user via a graphical user interface including one or more user interface objects displayed on the user device, directions to the seat location, wherein the directions are overlaid on a user interface object displaying a real-world view the user has of the venue on the user device;
providing, to the user via the graphical user interface, a walking distance and a time left to walk to the seat location, wherein the walking distance and the time left to walk to the seat location are overlaid on a user interface object displaying a real-world view the user has of the venue on the user device;
determining that the user device has arrived at the seat location;
in response to the determination that the user device arrived at the seat location, providing, to the user via the graphical user interface, information regarding at least one point of interest based on the seat location; and
providing, to the user via a user interface object of the graphical user interface, directions to the at least one point of interest, wherein the user interface object displaying the directions to the at least one point of interest changes based on at least a current time, a time to a start or a re-start of the event, and congestion along a route to the point of interest.
Claim 15
A non-transitory machine-readable medium comprising a plurality of machine-readable instructions which, when executed by one or more processors, are adapted to cause the one or more processors to perform a method comprising:
receiving [a] seat location associated with an event a venue and a user;
determining a location of a user device;
providing, to a user via a graphical user interface including one or more user interface objects displayed on the user device, directions to the seat location wherein the directions are overlaid on a user interface object displaying a real-world view the user has of the venue on the user device;
determining that the user device arrived at the seat location;
in response to the determination that the user device arrived at the seat location, providing, to the user via the graphical user interface, information regarding at least one point of interest based on the seat location; and
providing, to the user via a user interface object of the graphical user interface, directions to the at least one point of interest, wherein user interface object displaying the directions to the at least one point of interest changes based on at least a current time, a time to a start or a re-start of the event, and congestion along a route to the point of interest.
It is noted that claim 15 omits the feature of “providing, to the user interface, a walking distance and a time left to walk to the seat location. wherein the walking distance and the time left to walk to the seat location are overlaid on a user interface object displaying a real-world view the user has of the venue on the user device;” As such claim 15 only includes displaying directions to the seat and to the point of interest.
It is also noted that in the first two independent claims, that user interface only displays the walking distance and the time to walk to get to the seat. The walking distance and time to walk to get to the seat information is not claimed as being displayed for the route to the point of interest. The only information displayed for the route to the point of interest are the directions to that point of interest.
Importantly, all the independent claims include using the congestion along a route as a basis to change the user interface object which as discussed above could be either changes to the directions provided or changes to the alerts or both. Also as discussed above these changes are considered to provide the user with directions in order to get to a point of interest in an optimal way.
APPLICABLE LAW
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”). Amendments to sections 7, 40 and 49 of the Act apply to the present case as a consequence of Schedule 1, items 55(1)(d) and 55(4)(a), and Schedule 6, item 133(7)(d) of the Raising the Bar Act. 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.
Section 18 of the Act relevantly provides that:-
(1)Subject to subsection (2), an invention is a patentable invention for the purposes of a standard patent if the invention, so far as claimed in any claim:
(a) is a manner of manufacture within the meaning of section 6 of the Statute of Monopolies; and …
CASE LAW
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”.
At page 276, the High Court further observed that what is meant by a “product” in relation to a process is only something in which a new and useful effect may be observed. More specifically:-
“Sufficient authority has been cited to show that the ‘something’ need not be a ‘thing’ in the sense of an article; it may be any physical phenomenon in which the effect, be it creation or merely alteration, may be observed”.
In discussing the “vendible product” proposition put forward by Morton J in Re G.E.C’s Application, (1942) 60 RPC 1, the High Court in NRDC upheld the validity of a patent for the use of previously unknown properties of a known chemical to effect a new purpose. At page 277:-
“The effect produced by the appellant’s method exhibits the two essential qualities upon which ‘product’ and ‘vendible’ seem designed to insist. It is a ‘product’ because it consists in an artificially created state of affairs, discernible by observing over a period the growth of weeds and crops respectively on sown land on which the method has been put into practice. And the significance of the product is economic; for it provides a remarkable advantage … for one of the most elemental activities by which man has served his material needs, the cultivation of the soil for the production of its fruits.”
The High Court though was not laying down a precise formulation that can be applied unthinkingly. In D’Arcy v Myriad Genetics Inc (“Myriad”), [2015] HCA 35, at [23]:-
“This Court in NRDC did not prescribe a well-defined pathway for the development of the concept of ‘manner of manufacture’ in its application to unimagined technologies with unimagined characteristics and implications. Rather, it authorised a case-by-case methodology.”
That case-by-case approach must have regard to the substance of the claimed invention, not simply the form of the claim. The point was made succinctly in the Myriad case by Gageler and Nettle JJ. At [144]:-
“Whatever words have been used, the matter must be looked at as one of substance and effect must be given to the true nature of the claim.”
In Commissioner of Patents v RPL Central Pty Ltd (“RPL”), [2015] FCAFC 177, the Full Court of the Federal Court stated the same thing in the context of an invention that was in substance a scheme. At [96]:-
“A claimed invention must be examined to ascertain whether it is in substance a scheme or plan or whether it can broadly be described as an improvement in computer technology. The basis for the analysis starts with the fact that a business method, or mere scheme, is not, per se, patentable. The fact that it is a scheme or business method does not exclude it from properly being the subject of letters patent, but it must be more than that. There must be more than an abstract idea; it must involve the creation of an artificial state of affairs where the computer is integral to the invention, rather than a mere tool in which the invention is performed.”

Moreover at [98]:-
“It is not a question of stating precise guidelines but of deciding, in each case, whether the claimed invention, as a matter of substance not form, is properly the subject of a patent”.
In Research Affiliates LLC v Commissioner of Patents (“Research Affiliates”), [2014] FCAFC 150, the Full Court of the Federal Court noted a distinction between mere implementation of an abstract idea in a computer and implementation of the idea in a computer that created an improvement in the computer. At [103]:-
“… there is a distinction, between mere implementation of an abstract idea in a computer and implementation of an abstract idea in a computer that creates an improvement in the computer”.
Moreover, at [114] of Research Affiliates:-
“The invention set out in the specification is directed to the index itself. The method of the invention is not one that has any artificial or patentable effect other than the implementation of a scheme, which happens to use a computer to effect that implementation. There is no technical contribution to the invention or artificial effect of the invention by reason of the intervention of the inventors.”
A detailed analysis of the relevant case law was provided by the Delegate in Aristocrat Technologies Australia Pty Limited (“Aristocrat”), [2016] APO 49. I do not consider it necessary to reiterate the Delegate’s analysis, however I will emphasise the use of the non-exhaustive list that will be considered later. At [35]
“I conclude that it is relevant to consider a range of matters. Without seeking to be exhaustive, these include:
·there must be more than an abstract idea, mere scheme or mere intellectual information;
·is the contribution of the claimed invention technical in nature;
·does the invention solve a technical problem within the computer or outside the computer;
·does the invention result in improvement in the functioning of the computer, irrespective of the data being processed;
·does the application of the method produce a practical and useful result;
·can it be broadly described as an improvement in computer technology;
·does the method merely require generic computer implementation;
·is the computer merely an intermediary or tool for performing the method while adding nothing of substance to the idea;
·is there ingenuity in the way in which the computer is utilised;
·does the invention involve steps that are foreign to the normal use of computers; and
·does the invention lie in the generation, presentation or arrangement of intellectual information.
Two recent decisions from the Full Court of the Federal Court, namely Encompass Corporation Pty Ltd v Info Track Pty Ltd (“Encompass”), [2019] FCAFC 161 and the Commissioner of Patents v Rokt Pty Ltd (“Rokt”), [2020] FCAFC 86, are both considered to be consistent with the approach discussed and applied in Aristocrat and that taken in Research Affiliates and RPL.
THE EXAMINER’S OBJECTION
The objection in the examiners third report dated 29 May 2020 on the ‘803 application reads:
“Objection 4 of the previous report is maintained. Claims 1-20 as proposed to be amended do not define a manner of manufacture within the meaning of Section 18(1)(a) of the Patent Act 1990.
The Applicant’s response to the above objection was carefully considered but found not persuasive.
In general, the principles set out in D'Arcy v Myriad Genetics Inc [2015] HCA 35 (Myriad), Commissioner of Patents v RPL Central Pty Ltd [2015] FCAFC 177 (RPL) mean that the existence or otherwise of a manner of manufacture must be determined based on substance, which is assessed based on the contribution to the claimed invention(Commissioner of Patents v RPL Central Pty Ltd [2015] FCAFC 177 at [98]-[99]).
In the last response, page 2, you have stated that "In addition, because of the state of the prior art at the priority date, the inventor’s contribution to the art can be characterised as residing in a graphical user interface having the features defined in the amended claims. User interfaces have long been held to constitute manners of manufacture. In this regard, we refer the examiner to the Office decisions Aristocrat Technologies Australia Pty Limited [2016] APO 49 and Apple, Inc. [2019] APO 32 and the authorities cited therein. As the inventor’s contribution lies in a field that is considered to be a opposed to a fine art), the claimed invention falls squarely within the concept of a manner of manufacture."
However, Aristocrat and Apple do not support the broad assertion that UIs are per se a manner of manufacture. Both cases looked at the invention as a matter of substance and determined that the particular improvements in those cases were improvements to the operation of the computer. To simply assert that UIs are patentable as a class of object is to value form over substance. The clearest example of this is a subsequent Aristocrat decision ([2017] APO 1) which held that a subsequent UI patent specifying similar features was not patentable because the particular improvement was not an improvement in the computer.
Although the claims specify that the graphical user interface displays a real-world view of the venue to the user, the capacity to obtain and display live location information was well known in the art and nothing in the claim specifies any improvement to such a process. This feature therefore relates to the mere use of generic technology in furtherance of the abstract scheme.
Moreover, it is considered that there is a clear distinction between the inventions in Aristocrat Technologies Australia Pty Limited [2016] APO 49 and the present arrangement.
Aristocrat (paragraph 32) refers to Commissioner of Patents v RPL Central Pty Ltd (RPL) in which was said in the context of an arrangement that was in substance a scheme: “Where the claimed invention is to a computerised business method, the invention must lie in that computerisation. It is not a patentable invention simply to 'put' a business method 'into' a computer to implement the business method using the computer for its well-known and understood functions.” I maintain that one of the well-known and understood functions of a computer is the execution of programs, which is what the general-purpose computer of the claimed arrangement is enlisted solely for.
Unlike the patented arrangement or method discussed in Aristocrat which, through computerisation, brings about a technical improvement to a gaming machine that renders it simpler to operate, as exemplified by a one touch implementation, the presently claimed arrangement or method is simply an abstract idea that is put into a computer, which when implemented on a general purpose computer, might result in the convenient display of useful information at a location but which does not improve any technical aspects of a general purpose computer.
Thus, while it can be said in Aristocrat (paragraph 48) that “it does not appear that it was normal (at the priority date) to configure a gaming machine interface in this particular way” and that “information is located in a particular position and functionality is generated by the use of this positional location”, the same cannot be said in relation to the specification as filed which is directed to providing location based services to a user at an event. This is an innovation in the business process and not an improvement in interface technology.
Therefore the claimed invention, as a matter of substance, does not define subject matter suitable for a patent.”
THE APPLICANT’S SUBMISSIONS
The applicant provided written submissions that set out a detailed and accurate background of the examination history that lead to the hearing being requested on 24 July 2020, barring an incorrect reference the hearing request date in paragraph [15] of the submissions, but this is of little consequence.
The submissions also accurately reflect the description and the claims of the specification consistent with the interpretation of the specification as discussed above.
The applicant’s submissions also cited the relevant law from the above-mentioned NRDC, IBM,Research Affiliates, RPL, Rokt Pte Ltd v Commissioner of Patents [2018] FCA 1988, Encompass, and Aristocrat Technologies Australia Pty Ltd v Commissioner of Patents [2020] FCA 778 cases. There appeared to be nothing contentious about the appropriate principles of law that apply.
In paragraphs 53 to 61 of the submissions the applicant presented what they consider to be the technical, practical, and useful aspects of the system and the method and in addition the physical aspects of using time and congestion to update the interface with real time data.
CONSIDERATION
The system, method and program as defined in claims 1, 9 and 15 respectively, are all directed to a device such as a mobile phone or the like, having physical components that can receive and processes data, including location, time, and congestion, to determine and present to the user, via an interface on a display, directions to get to a point of interest in an optimal way. Put another way the application is directed towards a navigation device that considers location, time, and congestion to assist people to move around a crowded venue to arrive at their point of interest in an efficient manner.
The examiner identified the substance of the claims in the last examination report to be is:
“…simply an abstract idea that is put into a computer, which when implemented on a general purpose computer, might result in the convenient display of useful information at a location but which does not improve any technical aspects of a general purpose computer.”
and then reiterates with a comment that:
“This is an innovation in the business process and not an improvement in interface technology.”
The applicant submitted in [61]:
“The integers of the claim recite still further relevant useful effects, by providing via a user interface object of the graphical user interface directions, the user interface object changing based on at least a current time, a time to a start or a re-start of the event, and congestion along a route to the point of interest. The use of time and congestion information to adapt the user interface object in a useful way further demonstrates that the invention is not a mere scheme or abstract idea and has no resemblance to a business plan.”
After reading the specification as a whole the substance of the invention appears to lie in the combination of the integers that solve a technical problem of determining not only location and time, but also crowd congestion at a venue and, at specific times during the event, to determine changes to a route to reach a desired point of interest efficiently that are then displayed on the device in a particular manner to benefit the user in navigating to and from the point of interest.
Obtaining congestion information during the course of an event is clearly a technical problem that requires a technical solution and processing that information in a manner to present it to the user in the form of a recommended route to avoid the congestion is addressing a real and physical problem that, when implemented as per the claims, does produce a practical and useful result that is not related to a business process or business rules.
In considering the submissions and the examiner’s objection it is beneficial to turn to the non-exhaustive list the Delegate articulated in the Aristocrat decision as mentioned above. I can agree with the examiner that a mere presentation of information, or, for that matter, an abstract idea simply implemented into a computer is not a manner of manufacture. I can also agree that the individual components have been discussed as being well known and that the individual components have not been improved in any technical manner. However, I do not agree that, in combination, the claimed invention defines merely a presentation of information, an abstract idea or scheme, nor is it merely implementing a business process within a computer as the claims do not merely define such features. I do not agree with the examiner that the claimed features, in combination, can be distinguished from the subject matter of the Aristocrat decision and consider that the second and fifth dot points, namely “is the contribution of the claimed invention technical in nature”, and “does the application of the method produce a practical and useful result”, at least, are met by the substance of the invention as defined in the claims.
In contrast to that defined in Research Affiliates, RPL, Encompass, and Rokt, the claims of this application clearly define more than an abstract idea. In combination the claims define changing the physical directions provided to a user based on at least the current time, a time to start or restart of the event and congestion along the route to get to the point of interest. The provision of physical directions for the user to take, as claimed, is not considered to be abstract or implementing a business process, but rather a physical and technical solution to a physical and technical problem that provides a practical and useful result.
As such, I agree with the applicant’s submissions that the claimed invention is not a mere scheme, abstract idea, or a business process or plan, but, rather, it provides a technical solution to the technical and physical problem of processing location, time, and congestion data to determine an alternative physical and practical route, that then by necessity, is presented to the user. I also consider that in combination the features as defined in the claims that define the device, method, and program all produce a practical and useful result that enables a user to navigate their way to a point of interest in a less congested and more timely and efficient manner.
I find the ‘803 application is for manner of manufacture.
Given the outcome of this decision regarding the ‘803 application and that the ‘072 application is substantial the same, the applicant may wish to consider withdrawing the ‘072 application.

CONCLUSION
I conclude the claims of the ‘803 application, as proposed to be amended define a manner of manufacture.
Moreover, I conclude that as the sole outstanding objection to the ‘803 application has been overcome. I will accept the patent request and complete specification relating to the application.
R. Bartram
Delegate of the Commissioner of Patents