Forethought Pty Ltd - [2022] APO 16

IP AUSTRALIA
AUSTRALIAN PATENT OFFICE
Forethought Pty Ltd [2022] APO 16

Patent Application: 2020233763

Title:Computational methods and systems for improved prediction of commercial outcomes from marketing communications

Patent Applicant:                   Forethought Pty Ltd
Delegate:  Dr A. Lim
Decision Date:  01 March 2022
Hearing Date:  Written submissions filed on 12 January 2022. Videoconference on 19 January 2022.

Catchwords: PATENTS – examiner objection – whether the invention is a manner of manufacture – predicting changes in market share of a business in response to advertising campaigns – business innovation – no patentable subject matter identified in the specification – application refused

Representation: Patent attorneys for the applicant: Dr Mark Summerfield, Karen Sinclair of Griffith Hack

IP AUSTRALIA
AUSTRALIAN PATENT OFFICE
Patent Application: 2020233763

Title:Computational methods and systems for improved prediction of commercial outcomes from marketing communications

Patent Applicant: Forethought Pty Ltd
Date of Decision: 01 March 2022
DECISION
The claimed invention is not for a manner of manufacture. I see no subject matter in the specification which could be made the subject of a valid claim to overcome this finding.
I refuse the application.
REASONS FOR DECISION
Background

Patent application 2020233763 (the present application) was filed by Forethought Pty Ltd (the applicant) on 18 September 2020. The present application claims priority from provisional application 2019903573, filed on 25 September 2019, and US 62/915,991 filed on 16 October 2019.
Since the present application was filed after 15 April 2013, this application is governed by the Patents Act 1990 (the Act) as amended by the Intellectual Property Laws Amendment (Raising the Bar) Act 2012. Accordingly, the standard of proof that applies to the examination of the present application is the balance of probabilities. I must accept the present application if satisfied on the balance of probabilities that the application complies with the Act.[1] If I am not so satisfied, then I can refuse the application.[2]
[1] Section 49 of the Act as amended.
[2] Explanatory Memorandum to the Raising the Bar Bill, item 14.
Expedited examination was requested on 18 September 2020. A first examination report was issued on 29 October 2020 raising a lack of manner of manufacture, regarding all the claims, as the only objection. The applicant responded to the first examination report on 11 December 2020 with submissions that the claimed inventions are directed to patentable subject matter. A second examination report was issued on 19 January 2021 maintaining the objection of lack of manner of manufacture. The applicant requested to be heard in relation to the outstanding objection on 28 October 2021.
While the final date of acceptance of the present application is 29 October 2021, sub-regulation 13.4(1)(g) extends the time for gaining acceptance to three months (or longer if appropriate) from the date of the present decision.
The specification
In this decision, I am considering the specification as filed on 18 September 2020 since no amendments have been proposed up to the present point in time.
The invention as described
The specification relates to computational methods, systems and computer program products which have been configured to perform data modelling and analytics on information obtained from market research and marketing activity.[3] The computational methods, systems and computer programs are used to predict, in advance, the expected effectiveness of marketing communications (that is, advertising) which are developed to achieve business objectives, particularly enhanced market share and the associated commercial outcomes. The computed predictions are then used to assist decision-making regarding whether to proceed with the proposed marketing campaign based on the expected return on investment.[4] In other words, the computed predictions are used to evaluate in advance whether the expected benefits of the marketing campaign are likely to justify the expense.
[3] Specification at [0001].
[4] Specification at [0006].
As background to the invention, the specification notes that businesses spend billions of dollars per year on marketing communications to maintain and grow the size and share of the markets for their goods and services. This is because market share is widely recognised as a main determinant of business profitability. Therefore, those businesses would like to understand and predict in advance the effectiveness of their investment in marketing campaigns towards achieving greater market share and enhanced business profitability.[5]
[5] Specification at [0002] - [0003].
The specification states that there is:
“… an ongoing need for improved computational methods and systems, having a sound basis in marketing science, data science, modeling and analytics, for measuring the performance of marketing communications, and for predicting the corresponding impact on market share and associated commercial outcomes, such a profitability. …”[6]
[6] Specification at [0004].
The specification describes the following aspects of the invention, each of which I will elaborate on:
·a computing system for predicting changes in market share responsive to a marketing communications campaign associated with a target brand;[7]
·a computer-implemented method of predicting changes in market share responsive to a marketing communications campaign associated with a target brand;[8]and
·a computer program product comprising a tangible computer-readable medium with stored instructions which will implement the above-mentioned computer-implemented method when executed by a processor.[9]
[7] Specification at [0005].
[8] Specification at [0013].
[9] Specification at [0014].
The aspects of the invention are described to have the following capabilities:
·process initial survey data to model consumer preferences and identify rational and emotional drivers of consumer choice of a brand;
·compute the efficacy of proposed marketing communications based upon leading drivers of consumer choice identified;
·process subsequent survey data linked to the proposed marketing communications to identify changes in the lead drivers elicited by the communications;
·compute predicted changes in consumer preferences to choice of brand;
·compute the expected impact of the proposed marketing campaign while considering the imperfect recognition of marketing messages by consumers, imperfect linkage of messages to the corresponding brand by consumers, and imperfect efficiency of media channels; and
·compute predictions of commercial outcomes, such as changes in market share.[10]
[10] Specification at [0005], [0006], [0013], [0014], [0077].
The advantage provided by the embodiments of the invention is stated to be:
“… a more comprehensive account and prediction of the in-market performance of marketing communications than has previously been available.”[11]
[11] Specification at [0006].
The specification states:
“Embodiments of the invention incorporate effectiveness and efficiency inputs, eliminating a conventional assumption of ‘perfect information’ which fails to account for imperfect efficiency of media channels, imperfect recognition by consumers of marketing messages, and imperfect linkage by consumers of the messages to the corresponding brand. Algorithms implemented in embodiments of the invention are based on advances in the technical disciplines of marketing science, data science, modeling and analytics, to measure the performance of marketing communications, and predict the corresponding impact on market share and ROI of a proposed marketing campaign. Client brands are thereby able to make more informed decisions in relation to their marketing investments. Improved decision-making may significantly enhance efficiency, avoid ineffective or unwarranted expenditure, and thus provide benefits to the client brand and to consumers who will receive products, services, and marketing communications that are better targeted to their needs, interests and desires, at more competitive prices.”[12]
[12] Specification at [0077].
An exemplary networked system 100 including a marketing analysis server 102 embodying the present invention is shown in Figure 1 of the present application. Figure 1 is reproduced here for convenience.
The networked system 100 includes:
·a marketing analysis server 102 which comprises a computer-implemented system configured to perform modelling and analytics using market research and marketing activity data to predict the impact of marketing communications on market share;
·a market research server 118 which is configured to manage and administer market research surveys and to process, organise and store results of the surveys;
·a market research database 120, operably associated with the market research server 118, which is used to store survey data, including questionnaires and associated survey results;
·one or more remote participant terminals 122 which can be used by survey participants to access market research server 118 via the internet 116; and
·an analytics client terminal 124 which can be operated by a user, for example, an owner or employee of a business engaged in market analysis and modelling.[13]
[13] Specification at [0017] – [0024].
The specification mentions:
“Details of the operation of the market research server 118 are peripheral to the present invention. However, embodiments of the invention, e.g. the marketing analytics server 102, may retrieve, e.g. via the Internet 116, survey results stored in the database 120 for use in market modeling and analysis algorithms, such as the algorithms described below with reference to Figures 2-6.”[14] (emphasis added)
[14] Specification at [0025].
The specification describes the administration of market surveys to be one of several “external processes” which interact with the computer-implemented modelling and data analytics method of the present invention.[15] Therefore, I interpret the operation of the following processes, by the market research server 118, are external to (that is, not part of) the present invention as described:
·managing and administering market research surveys; and
·the subsequent processing, organising and storing of results of the surveys in operable association with market research database 120.
[15] Specification at [0027].
Returning to the discussion of Figure 1, the remote participant terminals 122 are described to be conventional devices, for example desktop or laptop computers, tablets, smartphones, or other computing devices executing web browser software applications. The market research server 118 administers market research surveys through these devices via a web-based interface using conventional hypertext transfer protocol (HTTP), hypertext markup language (HTML), Javascript, or other web-based technologies.[16]
[16] Specification at [0024].
The marketing analytics server 102 implements an interface using web technologies, such as HTTP, HTML or Javascript which enables an operator of the participant terminal 124 to interact with the server 102 using a web browser application. The web-based interface enables the operator to conduct modelling and analytics using market research and marketing activity data to predict the impact of communications on market share. [17] It appears that the physical elements of the networked system 100 and the processes for interaction between the physical elements are part of standard computer technology.
[17] Specification at [0026].
I will now discuss the marketing analytics server 102 in more detail. Marketing analytics server 102 comprises:
·a processor 104;
·a non-volatile memory or storage device 106 – for example, a hard disk drive, ROM (read-only memory), flash memory or solid-state drive (SSD);
·volatile storage 110 – for example, RAM (random access memory);
·data or address busses 108 which operably associate the processor 104 and non-volatile memory or storage device 106; and
·communications interface 112 which facilitates access of the processor 104 to a wide-area data communications network, such as the Internet 116.[18]
[18] Specification at [0017] – [0021]; Figure 1.
The storage device 106 contains operating system programs and data, as well as other executable application software necessary for proper operation of the marketing server 102. The specification states that the storage device 106 contains specific program instructions which, when executed by the processor 104 cause the marketing analytics server 102 to perform the operations of the embodiment of the invention.[19]
[19] Specification at [0019].
In operation, the program instructions and data held in storage device 106 are transferred to volatile memory 110 for execution on demand. The corresponding body of program instructions 114 is stated to:
“… comprise one or more computer programs or program modules making a technical contribution to the art, over and above well-understood, routine, and conventional activity in the art of market modeling and analytics. These computer program modules must be developed and configured specifically to implement an embodiment of the invention as further described below...”[20]
[20] Specification at [0021].
The specification states that the term “module” is used to refer to a combination of hardware and software configured to perform a particular defined task.[21]
[21] Specification at [0022].
The specification also states:
“While acknowledging that other choices of tools and technology may be available, the present inventors have developed a particular embodiment of the invention which has been implemented using the Microsoft.NET framework for application development and execution, and Microsoft® SQL Server for data storage, retrieval and management. It will be appreciated by skilled persons that embodiments of the invention involve the implementation of software structures and code that are not well-understood, routine, or conventional in the art of market modeling and analytics, and that while pre-existing languages, frameworks, platforms, development environments, and code libraries may assist implementation, they require specific configuration and extensive augmentation (i.e. additional code development) in order to realize various benefits and advantages of the invention and implement the specific structures, processing, computations, and algorithms described below, particularly with reference to Figures 2-8.”[22]
[22] ibid.
The overall operation of an embodiment of the invention is illustrated in Figure 2 of the present application which is reproduced here.
These steps shown in Figure 2 represent those which occur in the context of a client business that has a brand in a market for the provision of particular goods or services. The specification summarises the processes in flow diagram 200 to be:
“directed to designing and testing marketing communications (i.e. advertising) of the client brand, simulating the performance of the communications in the marketplace, and predicting a change in market share and revenue of the client brand expected to result from a corresponding marketing campaign.”[23]
[23] Specification at [0027].
The specification describes the processes of the flow diagram 200 to be:
“fundamentally a series of technical processes, involving the deployment of sophisticated computer-implemented modeling and data analytics techniques, interacting with external processes including the administration of market surveys and the development of creative inputs (e.g. advertising media) to the proposed marketing campaign.”[24](emphasis added)
[24] ibid.
I have previously interpreted “external processes” to be processes that are not part of the present invention. Consequently, I understand flow diagram 200 to include:
1.processes which are part of the present invention – for example, computing, modelling and data analytic steps; and
2.processes which are not part of the present invention – for example, administration of market research surveys and the development of advertising media for proposed marketing campaigns which are external to the present invention.[25]
Market research surveys
[25] Specification at [0027], [0029], [0059], [0068], [0071].
While the administration of market research surveys is not part of the present invention, this administrative process interacts with processes of the invention by providing data for the computing, modelling and data analytic steps of the present invention.[26] In order to understand the data used for the computing, modelling and analytic steps, I will now discuss the market research surveys.
[26] Specification at [0025].
The market surveys are designed to identify the attributes sought by consumers when selecting between a brand of a client business (client brand) and brands of competitors (competing brands).[27] The attributes comprise rational and emotional attributes. Rational attributes include price and quality – attributes regarding the products and services which consumers are consciously aware of when making a purchasing choice. Emotional attributes are described in the specification as the pre-cognitive emotional responses to brands and marketing communications of the brands.[28] The embodiments of the present invention include assessment of nine emotions – love, pride, contentment, happiness, anger, sadness, shame, anxiety, and surprise.[29]
[27] Specification at [0027], [0028].
[28] Specification at [0028].
[29] Specification at [0039].
Suitable survey participants are identified by asking some initial qualifying questions of those who have purchased a product or service with one of the brands that is being researched. Selected participants are subsequently presented with a series of further questions relating to rational attributes, such as quality and price, of the client brand and one or more competitor brands. Typically, survey questions request that participants rate characteristics of the client or competitor brand on a numerical or categorical scale, resulting in responses that can be encoded numerically, from zero (meaning, for example, lowest rating, ‘poor performance’, or ‘strongly disagree’) to a maximum, such as 10 (meaning, for example, highest rating, ‘excellent performance’, or ‘strongly agree’).[30]
[30] Specification at [0035].
Survey questions regarding quality can be broken down into subcategories, such as performance and reputation. Performance ratings involve questions regarding characteristics of a service or product, for example, friendliness or efficacy of a service, or ease of use of a product. The reputation rating involves questions regarding characteristics such as reliability, safety, longevity, and so forth.[31]
[31] Specification at [0036].
Survey questions regarding price can include survey participants’ ratings of various aspects of price-competitiveness of client or competitor brands, such as everyday pricing, discount, or sale pricing, booking fees, and so forth.[32] Additionally, survey participants can also be asked to evaluate an overall quality and price-competitiveness of the client or competitor brands, as well as provide a consumer value assessment, such as a ‘value for money’ or ‘worth what is paid’ (WWP) rating.[33]
[32] Specification at [0037].
[33] Specification at [0038].
The specification describes embodiments of the invention to use a system for measuring emotional attributes developed in previous studies and described in US patent 8,939,903, issued in January 2015. The measurement system is based on animated scales designed in accordance with visual metaphors representing the nine emotions mentioned above. In this system, a baseline level of emotional response of each survey participant is obtained for each of the nine metaphorical scales. Participants are subsequently presented with a sensory cue (for example, a logo, TV advertisement, still image, online banner advertisement, or other imagery) associated with the client or competitor brand. Further emotional responses to the brand are measured using the nine metaphorical scales. A set of scores representing a response to each of the nine emotions can be obtained for each brand researched.[34]
[34] Specification at [0039].

Finally, each survey participant was asked to identify their first choice (FC) of provider of goods or services.[35]
[35] Specification at [0040].
Rational and emotional attributes are measured using surveys administered by the market server 118. The results of the survey are stored in market research database 120 and can be subsequently retrieved for further processing by program instructions 114.[36]
Computing a coefficient representing a relative impact of rational and emotional drivers of consumer choice by a multivariate statistical analysis module
[36] Specification at [0028].
Returning to the discussion of the process steps of Figure 2, the aim of the first process 202, termed “initial modelling process”, is described to be identifying the most important drivers of consumer choice; that is, the attributes sought by consumers when selecting between a brand of a client business (client brand) and brands of competitors (competing brands). The process results in the identification of primary drivers, or lead indicators, of consumer choice 204 which will be targeted by the marketing communication of the client brand.[37]
[37] Specification at [0028], [0061].
The first process 202 is performed by the marketing analytics server 102 which is configured to compute behavioural lead indicators for products or services provided by the client and competitor brands. The computation process involves modelling and analysis based upon market survey data which is retrieved from the market research database 120. The computation is done by means of a multivariate analysis module implemented within program instructions 114.[38] The multivariate analysis module is configured to implement one or more statistical modelling algorithms.[39] The statistical modelling algorithm computes a coefficient representing the relative impact, or importance, of each rational and emotional attribute on consumer’s choice for each brand.[40]
[38] Specification at [0034].
[39] Specification at [0042].
[40] Specification at [0045], [0065].
The specification describes an embodiment which implements hierarchical Bayesian modelling which enables the rational and emotional drivers associated with consumer choice to be quantified and placed in a hierarchy. The hierarchical Bayesian modelling can consider individual and aggregate survey response scores.[41]
[41] Specification at [0043].
In an embodiment of the present invention, the consumer first choice (FC) selection obtained from the market research survey data constitutes a dependent variable of the hierarchical Bayesian model.[42] Survey scores of participants which reflect the rational and emotional attributes (brand attributes) constitute the independent variables of the model. The statistical modelling, implemented within program instructions 114, calculates a coefficient for each brand attribute (independent variable) on the FC (dependent variable). The coefficients represent the relative importance of each brand attribute to FC. [43]
[42] Specification at [0009].
[43] Specification at [0041], [0065].
In other embodiments of the present invention, the multivariate analysis module is configured with general linear regression models to specifically calculate the relative impact of the rational attributes on FC. For example, a linear regression model can be implemented to assess the relative impact of price competitiveness and quality on consumer value assessment. The consumer value assessment can be a consumer worth-what-is-paid (WWP) response obtained from the market research survey data. In the linear regression models, the consumer value assessment constitutes the dependent variable while the price and quality attributes constitute the independent variables.[44]
[44] Specification at [0011], [0048].
The specification describes Algorithm 1, reproduced below, as an example of a pseudocode used to compute coefficients representing the relative impact of rational and emotional attributes on consumer choice of a client or consumer brand.[45] While the specification does not define the term “pseudocode”, I understand this to mean a plain language description of the steps in an algorithm. A pseudocode is used for conveying key principles of an algorithm in an understandable way without using conventional programming code.
[45] Specification at [0051].
Algorithm 1 is based on the hierarchical Bayesian and linear regression models. Algorithm 1 also enables the results computed from the models to be presented in graphical format to facilitate the identification of leading (primary) drivers of consumer choice from the computed coefficients. [46] Figure 3 of the present application, reproduced below, is a schematic diagram of results of modelling produced using Algorithm 1. Chart 300 can be displayed on analytics client terminal 124.[47]
[46] ibid.
[47] Specification at [0059].
The specification states:
“As will be appreciated by persons skilled in the art of statistical modeling, implementations of fitting procedures for hierarchical Bayesian and linear regression models are available in statistical code libraries that can be incorporated into the program implemented by the instructions 114, and it is therefore assumed for the purposes of Algorithm 1 that a suitable code library is employed to provide these functions. However, specific computations and graphical output steps embodying the present invention are explicitly defined in Algorithm 1.”[48]
[48] Specification at [0051].
I interpret the paragraph quoted above to mean that statistical code libraries to implement the hierarchical Bayesian and linear regression models are known to the person skilled in the art of statistical modelling. The skilled person would also know that the statistical codes can be translated into suitable programming language for a computer program.
Development of marketing communications
The primary drivers (lead indicators) of consumer choice identified in the initial modelling process 202 are targeted for use in the development of marketing communications 206 for client brands. The development of marketing communications is described as an “external process”.[49] Therefore, I understand process 206 is not part of the present invention.
[49] Specification at [0027], [0028].
Marketing concepts, messages and media are created to shift the primary drivers in a direction such that consumer choice will shift towards the client brand and away from competing brands to increase market share of the client brand. Typically, this involves engaging advisers, such as advertising agencies who have expertise in this field.[50]
Computing predicting changes in attributes of the target brand in response to marketing communications by a test response analysis module
[50] Specification at [0029].
After creating suitable marketing communications, the communications are tested with consumers in a test process 208 performed by the marketing analytics server 102. A test response analysis module within the program instructions 114 computes the impact of the marketing communications on drivers of consumer behaviour. The testing can use the same survey methodology and statistical algorithms employed in the initial modelling process 202. However, the surveys administered via the market research server 118 may focus on the most influential drivers identified in the initial modelling. The approach can be used to reduce the number of survey questions by ignoring the drivers which were found to have relatively minimal impact on consumer choice.[51]
[51] Specification at [0060].
Survey participants in the test process 208 are exposed to proposed marketing communications and subsequently asked to respond to a survey in relation to various rational and emotional drivers of behaviour. The results from the survey can then be entered into a test response analysis module within program instructions 114 of the marketing analytics server 102 to compute results using the hierarchical Bayesian model. The computed results represent predicted changes in attributes of the target brand resulting from the marketing communications. [52]
[52] Specification at [0061].
These results can be compared with those generated in the initial modelling process 202 and visualised in a graphical format. Figure 6 of the present application, reproduced below, is an example of a visual comparison of emotional attributes. Chart 600 shows aggregate responses, in the form of spider web traces, of survey participants in the initial study 602 and following exposure to the proposed marketing communications 604. The results indicate that the marketing communications had a generally positive effect on participants’ emotional responses to brand, reducing negative emotional responses and increasing positive emotional responses.[53]
[53] ibid.
The results from the test process 208 are described to be objective measures of the impact of marketing communications in driving a change in brand attributes. The results can be used as a basis for a decision 210 on how to proceed. Should the improvement in the primary indicators of consumer choice be considered not sufficient, the client can elect to iterate the marketing communications development process 206 to devise more effective communications.[54] Where the changes in primary indicators towards the target brand in response to marketing communications are considered sufficient, a decision can be made to move to a market share simulation process 212.
Computing a predicted efficacy measure of the marketing communications in changing market share of the target brand by a market share simulation module
[54] Specification at [0062].
The purpose of the market share simulation process 212 is to predict the efficacy of the proposed marketing campaign in changing the market share of the client brand. [55] The process 212 is implemented by a market share simulation module within program instructions 114 and executed by marketing analytics server 102. The market share simulation module employ algorithms, based on linear regression models, which can estimate changes in market share based on changes in brand attributes and assume ‘perfect information’.[56] This means the marketing communications reach the entire target market for the relevant goods or services provided by the client brand, every member of the target population can remember seeing the communication (100% recognition is achieved) and every member of the target population associates the recognised message with the client brand (100% linkage is achieved).[57] The specification states that the market share simulation module has previously been described in the applicant’s US patent application 2008/0010108, published in January 2008.[58]
[55] Specification at [0031].
[56] Specification at [0064], [0065].
[57] Specification at [0063].
[58] Specification at [0064], [0074].
The specification states that assuming ‘perfect information’ may result in overestimation of the changes in the market share of the client brand in response to marketing communications. This is because the assumed behaviours will not be exhibited by consumers who do not receive the marketing communications (i.e., reduction due to imperfect efficiency of the media), who do not remember receiving the communications (i.e., reduction due to imperfect recognition) or who do not associate the received message with the client brand (i.e., reduction due to imperfect linkage).[59]
[59] Specification at [0067].
Embodiments of the invention can incorporate effectiveness and efficiency factors into the market share simulation process 212 to compute a modified efficacy measure.[60] The effectiveness of marketing campaign messaging can be defined by two characteristics: recognition – that is, the proportion of the target population who can recognise seeing the communication; and linkage – that is, the proportion of the target population who associated the recognised message with the correct brand. Efficiency relates to the success of the campaign messaging in reaching the target population and may depend upon the mix of different media channels employed in the campaign.[61]
Computing a modified efficacy measure by a return on investment (ROI) by a ROI modelling module
[60] ibid.
[61] Specification at [0032].
The results of the market share simulation process 212 are used in a subsequent process 218 which is a ROI modelling process. The process 218 is implemented by a ROI modelling module which is within program instructions 114 and executed by marketing analytics server 102.[62]
[62] Specification at [0032], [0066].
Embodiments of the invention can incorporate efficiency and effectiveness factors in ROI modelling modules to compute a modified efficacy measure ɳ’ based upon the predicted efficacy measure, a measure of the communications media efficacy, a measure of consumer recognition of the marketing communications content, and a measure of consumer linkage of the marketing communications content of the target brand. If efficacy assuming perfect information is denoted as ɳ, recognition as g_r, linkage as g_l and media efficiency as µ_e, then a modified efficacy ɳ’ can be computed by the ROI modelling module that is defined by:
ɳ’ = (ɳ x g_r x g_l) x µ_e
Suitable values for the recognition, g_r, linkage, g_l, and media efficiency, µ_e, may be estimated from past experience, and/or gathered from surveys administered by the market research server 118. In some embodiments, media efficiency, µ_e, is estimated using media mix modelling which comprises time-series analysis of past data to determine the relative efficiency of different media (e.g., online, TV commercials, outdoor advertising, and so forth) in delivering desired commercial outcomes, such as sales. Media mix modelling may be performed externally to the marketing analytics server, and the results retrieved from a remote source via a local communications network or via the Internet 116.[63]
[63] Specification at [0067] - [0068].
Financial factors 214 can be input to the ROI modelling module. The financial factors include weighted average cost of capital (WACC), inflation rate, taxation rates, costs associated with achieving increase in market share, campaign duration and a measure of expected revenue increase associated with increase in market share.[64]
Computing a measure of commercial outcome
[64] Specification at [0066].
The ROI modelling process 218 generates a business outcome prediction 220 which may be used to inform a business decision as to whether to proceed with the proposed marketing campaign.[65] The business outcome prediction is based on predictions of commercial outcomes such as whether the campaign is expected to produce a sufficient return on investment.[66]
[65] Specification at [0033].
[66] Specification at [0006].
The measures of commercial outcomes include net present value (NPV), internal rate of return (IRR) and payback period.[67] NPV is the increase in the value of the business today after considering all relevant cash flows, the timing of the cash flows and the risk in generating the cash flows. The NPV must be positive for the project to be financially viable. The IRR must be greater than a required rate of return for the investment to be worthwhile. For example, the IRR can be compared with the weighted average cost of capital (WACC), or some other threshold rate. The payback period is the time taken for the cumulative incremental benefits to match the initial investment.[68]
[67] Specification at [0010].
[68] Specification at [0066].
Figure 8 of the present application, reproduced below, shows an exemplary web-based graphical interface 800 of the ROI modelling module implemented by an embodiment of the marketing server 102.
In the example shown in Figure 8, the user of the analytics client terminal, via standard web browser software, can review and/or adjust financial inputs via text boxes 802, and communications efficiency inputs via text boxes 804. In this example, communication efficiency is determined using media mix modelling, wherein the user can specify the share of media spend allocated to each one of several channels.[69]
[69] Specification at [0075].
After setting the input values 802, 804, the user may click the “calculate NPV” button 806 to instruct the ROI modelling module to compute ROI comprising NPV, IRR and payback period which are displayed on the interface. An overall recommendation of whether to accept or reject the campaign based on these results may also be displayed.[70]
[70] Specification at [0076].
The specification describes the processes of the flow diagram 200 to:
“have substantial commercial utility, in providing a basis to predict the returns, e.g. in terms of enhanced profitability, from the proposed marketing campaign relative to the associated costs. As such, embodiments of the invention provide objective inputs to commercial decision-making that can significantly enhance efficiency, avoid ineffective or unwarranted expenditure, thereby providing benefits to the client brand and to consumers who will receive products, services, and marketing communications that are better targeted to their needs, interests and desires, at more competitive prices.”[71]
[71] Specification at [0027].
The invention as explained
A declaration of Mr Kenneth Roberts, a co-inventor of the present application, was filed as part of the applicant’s written submissions.[72] At the oral hearing Mr Roberts made a presentation to explain a commercial embodiment of the applicant’s invention. The key points from Mr Roberts’ declaration, quoted below, were also emphasised at the oral hearing.
[72] The applicant’s written submissions and a declaration by Mr Kenneth George Roberts filed on 12 January 2022.
Mr Roberts stated that the applicant regards the statistical technologies of its invention as “enabling tools of marketing science”. Marketing science is stated to be “the term applied to describe an approach to understanding and satisfying consumer needs and desires predominantly through scientific methods.”[73]
[73] Roberts at [1].
Mr Roberts stated:
“…the invention brings disparate capabilities together for the first time within a single automated technical ecosystem. Where there were previously isolated islands of specialised capability, the invention provides an infrastructure that enables an individual operator – without necessarily any of the specialists’ skills – to see across a breadth of analytic tools and obtain concrete outcomes that enable them to make commercial decisions, such as whether or not to proceed with a proposed marketing campaign. In the absence of this infrastructure, the complex statistical models and their outputs are prohibitively difficult for most business decision-makers to access and to comprehend.”[74]
and
“Development of the invention has been the culmination of many years of work, and at least A$5 million in R&D investment. The single operator interface provided by the invention integrates, within an integrated software platform, the expertise of numerous specialists, including: analysts deeply skilled in using primary data and dependent variables in the development of explanatory models; advertising professionals who understand, for example, how drivers of consumer choice influence the development of a creative brief, and who understand the antecedents of consumer behaviour; and people skilled in commerce who understand and can apply concepts such as net present value, total rate of return, and other elements of business finance. Commercial implementation of the platform has involved the work of numerous skilled programmers, some of whom have been with my company for over 10 years and have acquired specialised skills in programming numerical and statistical models.”[75]
[74] Roberts at [6].
[75] Roberts at [8].
I understand the invention as explained by Mr Roberts is a commercial embodiment. There may be differences between the commercial embodiment as explained and the invention as claimed, but I note it is the claims I must assess to determine whether there is patentable subject matter. As an observation, I note from the evidence before me, it is difficult to see material differences between the commercial embodiment as explained and the invention as claimed for the purposes of my manner of manufacture analysis.
The invention as claimed

The specification as filed has 20 claims. The entire claim set is set out in Annex A to this decision. Claims 1, 10 and 20 are the independent claims. Claim 1 is reproduced here.[76]
[76] I have introduced lower case roman numerals to label the steps of Claim 1. The labelling was used by the applicant in its written submissions, and I have adopted the same labelling here for the purposes of making consistent references regarding the steps in Claim 1.
1. A computer-implemented method of predicting changes in market share responsive to a marketing communications campaign associated with a target brand, comprising steps of:
(i) retrieving, from a market research data store, first market research survey data relating to rational and emotional drivers of consumer choice
(ii) computing a first plurality of coefficients of a first statistical model corresponding with the first market research survey data, wherein each coefficient represents a relative impact of an associated driver of consumer choice;
(iii) retrieving, from the market research data store, second market research survey data relating to consumer response to marketing communications content that has been developed based upon leading drivers of consumer choice identified from the coefficients of the first statistical model;
(iv) computing, using the first statistical model and second market research survey data, predicted changes in attributes of the target brand corresponding with the leading drivers of consumer choice resulting from the marketing communications content;
(v) computing, using the predicted changes in attributes of the target brand and current market share data, a predicted efficacy measure of the marketing communications content in changing market share of the target brand;
(vi) computing a modified efficacy measure, based upon the predicted efficacy measure, a measure of communications media efficiency, a measure of consumer recognition of the marketing communications content, and a measure of consumer linkage of the marketing communications content to the target brand;
(vii) computing, using the modified efficacy measure along with provided financial factor data, one or more measures of commercial outcome from the marketing communications campaign.
Claim 1 is directed to a method of predicting changes in market share responsive to a marketing communications campaign associated with a target brand. The method is implemented in a computer.
The applicant made submissions about the integers of claim 1 and it is convenient to discuss the aspects which relate to what is claimed in Claim 1 here. I will address the applicant’s submissions regarding contribution of the claimed invention later in my decision.
The applicant submitted:
·The conduct of surveys does not form part of the claimed invention, but the survey results are “input into the inventive process”.[77]
·The inventive process does not include human or mental acts, such as the design of marketing communications, or ultimate financial decision-making.[78]
·Integers (i) and (iii) define the retrieval of externally generated first and second market research survey data comprising inputs to the claimed method.[79]
I have previously discussed my interpretation that the administration of market research surveys and the development of advertising media for proposed marketing campaigns are not part of the invention. I agree that conducting the first and second market research surveys are not part of claim 1 but the results from these surveys are retrieved from a data store and are input into the claimed method. I consider integers (i) and (iii) of claim 1 define the steps of retrieving data in functional terms.
[77] Applicant’s written submissions at [27].
[78] ibid.
[79] Applicant’s written submissions at [32].
The applicant submitted:
“Integer (ii) defines the processing of the first survey data, in particular to compute ‘a first plurality of coefficients of a first statistical model corresponding with the first market research survey data, wherein each coefficient represents a relative impact of an associated driver of consumer choice’. In contrast with the claims in Encompass and Rokt (and other cases as discussed above), the implementation of this step is not left as an exercise for the reader. The claim is explicit that what is required is a statistical model having coefficients with a specific interpretation. The specification provides further implementation details for particular embodiments of the invention. While the specification acknowledges that existing library code can be used to perform fitting of statistical models, the design of a suitable model, with coefficients having the required interpretation, must be tailored to the application, and forms part of the inventors’ contribution to the field. Far from informing the reader that the modelling can be implemented in ‘any suitable manner’ (or similar language, as was used in the patent specifications considered in Encompass, Rokt, and other cases), the present specification provides a specific pseudo-code algorithm (i.e. Algorithm 1) leaving the skilled addressee with the task only of translating this into a selected programming language and framework.”[80] (emphasis added)
[80] Applicant’s written submissions at [33].
I interpret integer (ii) of claim 1 to define computing a set of coefficients of a statistical model where each coefficient represents an interpretation of the importance of a driver of consumer choice. I consider the terms of integer (ii) to define the computation step in functional language, that is at a high-level. The integer does not define specifics of any statistical model or how the coefficients are computed.
The specification describes different statistical models may be used to compute the coefficients and hierarchical Bayesian modelling is one such model.[81] The pseudocode, Algorithm 1, is described in the specification as an example of a statistical model which uses hierarchical Bayesian modelling and a linear regression model to calculate the first set of coefficients. The specification describes the statistical models at a high-level and does not disclose specifics of the statistical model embodied by Algorithm 1 or how the coefficients are computed.
[81] Specification at [42]-[43].
The specification acknowledged that the person skilled in the art of statistical modelling would understand that fitting procedures for implementing hierarchical Bayesian and linear regression models into computer programs are available in statistical code libraries.[82] At the oral hearing the applicant submitted that fitting procedures are known to the skilled person and the coefficients, which represent the importance of a driver of consumer choice, are computed by fitting data from market research to the statistical model. The applicant also submitted orally that the fitting procedures involve an iterative process to design a statistical model which represents the data from market research surveys. From the specification and the applicant’s submissions, I understand that the knowledge regarding which statistical code libraries to use in designing a statistical model to represent the market survey data is within the normal skill set of the person skilled in the art of statistical modelling. The specification does not describe how the skilled person chooses which statistical code libraries to use but assumes they will know how to do this. Therefore, I consider the process of designing a suitable statistical model to represent the market of consumers is achieved using the common stock of knowledge of the person skilled in the art of statistical modelling. Adopting a different interpretation could lead to a finding that the specification fails to meet one or more requirements under section 40 of the Act.
[82] Specification at [0051].
I interpret integer (ii) of claim 1 not to be limited to any specific statistical model or algorithm, and the skilled person would know how to implement a suitable statistical model which represents the data from market research surveys. The specific details of how the coefficients are computed using the statistical model are not defined in the claim but left as an exercise for the skilled addressee. Therefore, I consider integer (ii) of claim 1 to define the step of computing a set of coefficients using a statistical model in functional terms.
While claim 4 defines that the first statistical model comprises a hierarchical Bayesian model, this only defines the type of the model and does not define any specifics about the model or how the step of computing coefficients is implemented.
The applicant submitted regarding integer (iv) of claim 1:
“Similarly, integer (iv) defines processing of the second survey data by providing it as input to the statistical model that was fitted to the first survey data in integer (ii). This process is specific and concrete. It does not merely involve an abstract idea. It requires passing the survey data through the precise model generated at integer (ii) to produce quantitative results in the form of predicted changes in attributes of the target brand resulting from the marketing communications content.”[83] (emphasis added)
[83] Applicant’s written submissions at [34].
I interpret integer (iv) of claim 1 to define, in functional terms, a step of computing predicted changes in attributes of the target brand for leading drivers of consumer choice resulting from marketing communications content. The computation step uses the statistical model used in integer (ii) of claim 1 and data from a second market research survey as input. I have previously decided integer (ii) of claim 1 does not define any specific statistical model or algorithm. It follows that integer (iv) of claim 1 also does not define any specific statistical model or algorithm which determines how the computation step of integer (iv) is implemented. I consider claim 1 does not limit the step of computing predicted changes in attributes of the target brand resulting from the marketing communications content to any specific method. The specifics of this computation step are left as an exercise for the skilled addressee to implement.
The applicant submitted regarding integer (v) of claim 1:
“Integer (v) concerns market simulation – again, a known but technically sophisticated statistical technique – to ‘convert’ the predicted attribute changes into predicted changes in market share. Integer (vi) is directed to ‘modifying’ this result to account for realistic market conditions. Once again, working out how to implement integers (v) and (vi) is not left as an exercise for the reader, and the present specification provides a specific pseudo-code algorithm (i.e. Algorithm 4).”[84]
[84] Applicant’s written submissions at [35].
The “known but technically sophisticated statistical technique” referred to in the applicant’s submissions quoted above is a method disclosed in the applicant’s own earlier patent application published as US 2008/0010108.[85] I understand the applicant’s submissions to be that the method disclosed in the earlier patent forms part of the prior art rather than being commonly known to the skilled person. The specification of the present application describes this method of estimating changes in market share based on changes in brand attributes, and assuming perfect information to be incorporated in its entirety by reference.[86] However, this method is not described to be well known to the skilled person. The method of the applicant’s earlier patent is also not claimed in claim 1. I consider that the method described in the applicant’s earlier patent cannot be read into claim 1. The specification describes pseudocode Algorithm 4 in terms of the types of information which form input for computing a predicted change in market share and does not describe specifics about how the computation is done.
[85] Specification at [74].
[86] Specification at [64].
I interpret integer (v) of claim 1 to define, in functional terms, the step of computing predicted changes in market share of the target brand based on predicted changes in brand attributes. The integer is not limited to, and does not claim, any specific algorithm or method of computing a predicted efficacy measure.
I interpret integer (vi) of claim 1 to define, in functional terms, a step of computing a modified efficacy measure based on the predicted efficacy measure computed in integer (v) of claim 1 and three other measures recited in the claim. As discussed previously, computing a modified efficacy measure addresses the imperfect efficiency of campaign messaging via different media channels, the imperfect recognition of message content and the imperfect association of message content with the correct brand. Integer (vi) does not limit the step of computing a modified efficacy measure to any specific method. Therefore, I consider integer (vi) of claim 1 does not define any specific algorithm or method of computing a modified efficacy measure.
The applicant submitted:
“Finally, integer (vii) is directed to incorporating additional business and financial data (e.g. anticipated communications production costs and advertising spend; campaign/project duration and ramp-up period; and expected increase in revenues associated with each unit increase in market share) to translate the changes in market share into commercial outcomes, such as an expected return on investment (ROI) from conducting a proposed marketing campaign.”[87]
[87] Applicant’s written submissions at [36].
I interpret integer (vii) of claim 1 to be directed to a step of computing one or more commercial outcomes by using the modified efficacy measure calculated in integer (vi) and additional financial data. I understand this computation to translate changes in market share into commercial outcomes that are used to predict whether a proposed marketing campaign is expected to produce sufficient return on investment. However, I interpret integer (vii) of claim 1 to define the computation step in terms of the types of parameters used for the computation and not how the computation is done. Integer (vii) of claim 1 is not limited to, and does not claim, any specific method of computing a commercial outcome. The specifics of how the computation step is done is left to the skilled addressee.
In summary, claim 1 is directed to a computer-implemented invention comprising a series of method steps which in effect involve retrieving data regarding consumers’ responses to a target brand from one or more market research surveys and computing a coefficient or measure based on the consumers’ responses. The computed coefficient or measure is used to predict changes in market share responsive to a marketing communications campaign for a target brand. I have concluded that each computing step of claim 1 (labelled integer (ii) and (iv)-(vii)) is defined in functional terms. Each computation step is not limited to any specific method and does not claim any specific method of computing a coefficient or measure.
Claim 10 is directed to a computing system for predicting changes in market share responsive to a marketing communications campaign associated with a target brand. The computing system comprises a processor, a memory device and a market research data store. The memory device and market research data store can be accessed by the processor. The memory device has a body of program instructions which can be executed by the processor to cause the computing system to implement a marketing analytics system.
The marketing analytics system is defined in claim 10 to comprise a multivariate statistical analysis module, a test response analysis module, a market share stimulation module and a return on investment module. The present specification uses the term “module” to mean a combination of hardware and software configured to perform a particular defined task.[88] I interpret claim 10 to define the multivariate statistical analysis module as configured to perform what are essentially the steps of integers (i) and (ii) of claim 1. By similar reasoning, I interpret the test response analysis module to defined as configured to perform the steps of integers (iii) and (iv) of claim 1. The market share stimulation module is defined as configured to perform the step of integer (v) of claim 1. The return on investment module is defined as configured to perform the step of integers (vi) and (vii) of claim 1.
[88] Specification at [0022].
Each of the four modules recited in claim 10 is defined in terms of the task or function it is configured to perform. Each module is defined as not limited to implementing any specific statistical model or algorithm. Therefore, I consider claim 10 does not define specific programming for computing coefficients or measures used to predict changes in market share responsive to market communications campaigns associated with a target brand. I interpret the specifics of the design and implementation of a suitable algorithm to perform the computing step of each computer module are not defined in claim 10 but left to the skilled addressee.
Claim 20 is directed to a computer program product which is characterised by the instructions it stores for a processor to carry out the steps of the method of claim 1.
Appended claims 2-9, and 11-19 define further features of the computer-implemented method and computer system, respectively. I have discussed these details of these features previously when I considered the invention as described in the specification. For example, claims 2, 3, 11 and 12 define features regarding the calculation of a modified efficacy measure to address the imperfect effectiveness and efficiency of marketing communications; claims 4 and 13 define a hierarchical Bayesian model is used in the computation steps; and claims 9 and 16 define features regarding the types of measures of commercial outcomes computed. No issues of construction have been raised during examination and I have not had any difficulty understanding these claims.
The objection
The examiner formed the view that the substance of the claims is a scheme and consequently the invention defined by all claims is not a manner of manufacture. In the first report, the examiner referred to the scheme as “a marketing scheme” and stated:
“I do not consider the present application involves more than a generic utilisation of well-known functions of a computer, including the particular arrangement/combination of functions, and therefore does not involve any invention or ingenuity in any program or operation of a computer, or implementation by a computer to operate the method.”[89]
[89] First examination report dated 29 October 2020.
After considering the applicant’s response to the first examination report, the examiner maintained the lack of manner of manufacture objection in the second examination report referring to the scheme as an administrative scheme of determining a commercial outcome from a proposed marketing campaign. I set out the objection in the second examination report in full:[90]
[90] Second examination report dated 19 January 2021.
I have carefully considered the response to the last examination report. However, I am not persuaded by the arguments outlined in the response in regards to the objections raised in the last examination report.
Claims 1-20 do not define a manner of manufacture within the meaning of Section 18(1)(a) of the Patents Act 1990 according to the principles set out in D'Arcy v Myriad Genetics Inc [2015] HCA 35 (Myriad), Encompass Corporation Pty Ltd v InfoTrack Pty Ltd [2019] FCAFC 161 (Encompass), Commissioner of Patents v Rokt Pte Ltd [2020] FCAFC 86 (Rokt), Commissioner of Patents v RPL Central Pty Ltd [2015] FCAFC 177 (RPL) and other cases. The claimed invention, as a matter of substance rather than form, is not suitable subject matter for a patent.
The substance of the claimed invention is to be determined by considering the claimed invention's actual or alleged contribution to the art. Factors relevant to consider when identifying the substance of the claimed invention include:
·           How does the claimed invention work?
·           What problem does it address?
·           What is the result of performing the claimed invention?
·           What was the state of the art as at the priority date?
·           What does the claimed invention add to the state of the art?
·           What are the advantages of the claimed invention?
In regards to the substance of the present application, the Applicant failed to explicitly identify the substance of the claimed invention or identify the technical problem the present application addresses. However, the Applicant asserts:
“Properly construed, then, the claim is not directed to a marketing scheme. Performing the claimed method does not result in the marketing of products or services. Rather, it results in the execution of a series of computational steps which produce a prediction of the expected commercial outcome of a proposed marketing campaign. Thus, for example, the commercial viability of conducting the marketing campaign can be evaluated in advance to determine whether the benefits are likely to justify the expense.
Predicting the effectiveness of a marketing campaign in advance is a remarkable outcome, which is plainly ‘foreign to the normal use of computers’ (see, e.g., discussion of International Business Machines Corporation v Commissioner of Patents (1991) 22 IPR 417 in the Examiners Manual, Section 2.9.2.7).”
Respectfully, I do not agree with this assessment.
The present application is directed to the problem associated with marketing communications and the need to the predict the impact of marketing communication on market share for entities associated with the marketing communications [paragraphs 2-4]. Accordingly, the claimed invention addresses this problem by statistical modelling market research data to determine a commercial outcome from the proposed marketing communication campaign.
The Courts have indicated several factors relevant to consider when determining whether a claimed invention as a matter of substance relates to patentable subject matter. These included:
·        Is the contribution to the claimed invention technical in nature?
·        Does the claimed invention solve a "technical" problem within the computer or outside the computer?
·        Does the claimed invention result in an improvement in the functioning of the computer, irrespective of the data being processed?
·        Does the claimed invention merely require generic computer implementation?
·        Is the computer merely the intermediary, configured to carry out the method, but adding nothing to the substance of the idea?
·        Does the ingenuity in the invention lie in a physical phenomenon in which an artificial effect can be observed rather than in the scheme itself?
·        Does the alleged invention lie in the way the method or scheme is carried out in a computer?
·        Does the alleged invention lie in more than the generation, presentation or arrangement of intellectual information?
In view of the above criteria, I am not satisfied on the balance of probabilities the contribution to the claimed invention is technical in nature such that it produces an improvement in the claimed computing system. I am not convinced by the Applicant's submission that attempted to address these factors. For instance, the Applicant asserts:
“The contribution of the claimed invention is technical in nature. As discussed above, on a proper construction the claimed invention is not a ‘marketing scheme’, but rather is a computational method which uses sophisticated statistical modelling techniques to process market research survey data to determine a prediction of the expected commercial outcome of a proposed marketing campaign. This is a technical contribution that transforms a generic computer, through specific programming (e.g. as detailed in at least Algorithms 1, 3 and 4) into a special-purpose machine configured to achieve this notable result.”
I believe the problem being addressed in the present application is not technical in nature but rather a commercial or business related problem. Determining the effectiveness of a marketing campaign is subject matter not considered patentable. Moreover, the claimed computer system is used in a fundamentally generic manner to process market research data to produce a statistical modelling for a marketing campaign to determine the effectiveness of the campaign.
Broadly, I consider the substance of the claimed invention is the administrative scheme of determining a commercial outcome from the proposed marketing communication campaign. I struggle to see the technical contribution provided by the substance of the claimed invention in light of existing computing systems that evaluate marketing campaigns and suggest the contribution provided by the claimed invention is the administrative scheme or the specific modelling recited in the claims.
As a consequence, I consider claims 1-20 do not define a manner of manufacture within the meaning of Section 18(1)(a) of the Patents Act 1990.
The law on manner of manufacture

Section 18(1) of the Act relevantly reads:
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;
The concept of manner of manufacture has developed over time and is not readily reduced to a simple formula. The classic definition of manner of manufacture is set out in National Research Development Corporation v Commissioner of Patents:[91]
“The inquiry which the definition demands is an inquiry into the scope of the permissible subject matter of letters patent and grants of privilege protected by the section. It is an inquiry not into the meaning of a word so much as into the breadth of the concept which the law has developed by its consideration of the text and purpose of the Statute of Monopolies. ... The right question is: ‘Is this a proper subject of letters patent according to the principles which have been developed for the application of s 6 of the Statute of Monopolies?’”[92]
[91] [1959] HCA 67; 102 CLR 252 (NRDC).
[92] NRDC at 269, [14].
The High Court then went on to set out a test in terms relevant to the facts of that case:
“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.”[93]
and
“The effect produced by the appellant's method exhibits the two essential qualities upon which ‘product’ and ‘vendible’ seem designed to insist. It is a ‘product’ because it consists in an artificially created state of affairs, discernible by observing over a period the growth of weeds and crops respectively on sown land on which the method has been put into practice. And the significance of the product is economic; for it provides a remarkable advantage, indeed to the lay mind a sensational advantage, for one of the most elemental activities by which man has served his material needs, the cultivation of the soil for the production of its fruits.”[94]
[93] NRDC at 275, [22].
[94] NRDC at 277, [25].
In Grant v Commissioner of Patents[95] the Full Court of the Federal Court considered whether a physical effect was required:
“A physical effect in the sense of a concrete effect or phenomenon or manifestation or transformation is required. In NRDC, an artificial effect was physically created on the land. In Catuity and CCOM as in State Street and AT&T, there was a component that was physically affected or a change in state or information in a part of a machine. These can all be regarded as physical effects. By contrast, the alleged invention is a mere scheme, an abstract idea, mere intellectual information, which has never been held to be patentable, despite the existence of such schemes over many years of the development of the principles that apply to manner of manufacture. There is no physical consequence at all.”[96]
[95] [2006] FCAFC 120; 234 ALR 230 (Grant).
[96] Grant at [32].
The High Court has consistently made it plain that NRDC, and all other cases, were not laying down a precise formulation that can be applied unthinkingly:
“Nothing said in the Court's reasons for decision in that case can be taken as an exact verbal formula which alone captures the breadth of the ideas to which effect must be given.”[97]
“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.”[98]
[97] Apotex Pty Ltd v Sanofi-Aventis Australia Pty Ltd [2013] HCA 50; 253 CLR 284 (Apotex) at [83].
[98] D'Arcy v Myriad Genetics Inc [2015] HCA 35; 258 CLR 334 (Myriad) at [23].
That case-by-case approach must have regard to the substance of the claimed invention, not simply the form of the claim.[99] The point is made most succinctly by Gageler and Nettle JJ in the Myriad case:
[99] Myriad at [6] and [88].
“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.”[100]
[100] Myriad at [144].

100. In Commissioner of Patents v RPL Central Pty Ltd[101] the Full Court of the Federal Court said the same thing in the context of a computer-implemented invention:
[101] [2015] FCAFC 177; 115 IPR 461 (RPL Central).
“A claimed invention must be examined to ascertain whether it is in substance a scheme or plan or whether it can broadly be described as an improvement in computer technology. The basis for the analysis starts with the fact that a business method, or mere scheme, is not, per se, patentable. The fact that it is a scheme or business method does not exclude it from properly being the subject of letters patent, but it must be more than that. There must be more than an abstract idea; it must involve the creation of an artificial state of affairs where the computer is integral to the invention, rather than a mere tool in which the invention is performed. Where the claimed invention is to a computerised business method, the invention must lie in that computerisation. It is not a patentable invention simply to ‘put’ a business method ‘into’ a computer to implement the business method using the computer for its well- known and understood functions.
Is the mere implementation of an abstract idea in a well-known machine sufficient to render patentable subject matter? Is the artificial effect that arises, because information is stored in RAM and there is communication over the Internet or wifi, sufficient? Does any physical effect give rise to a manner of manufacture? Are the mere presence of an artificial effect and economic utility, without more, sufficient to determine manner of manufacture?
It is not a question of stating precise guidelines but of deciding, in each case, whether the claimed invention, as a matter of substance not form, is properly the subject of a patent.”[102]
[102] RPL Central at [96] – [98].

101. In Research Affiliates LLC v Commissioner of Patents[103] the Full Court of the Federal Court stated:
[103] [2014] FCAFC 150; (2014) 109 IPR 364 (Research Affiliates).
“When the authorities in Australia prior to and including Grant are considered, a
consistent approach emerges as to the relevance of:
·     a distinction between a claim to a business scheme and claims to methods which in practice result in a new machine or process or an old machine giving a new and improved result – that is, a distinction between mere intellectual information and a method that affects the operation of an apparatus in a physical form (Grant at [18]);
·     the fact that the claimed steps are foreign to the normal use of computers, such as the production of an improved curve image (IBM 2 at FCR 225-226; ALR 395; IPR 424);
·     the particular mode or manner of achieving an end result which is an artificially created state of affairs, such as the storage of data as to Chinese characters and retrieval of graphic representations to enable word processing (CCOM at FCR 295; ALR 450; IPR 514);
·     whether part of the invention is an inventive method which includes the application and operation in a physical device (Grant at [30]);
·     the distinction drawn in Catuity, as explained in Grant (at [24]), between ‘a technological innovation which is patentable and a business innovation which is not’. In Catuity, Heerey J did not accept that a physically observable effect was necessarily required (at [128]) but the Full Court in Grant expressed the opinion that a physical effect in the sense of a concrete effect or phenomenon, or manifestation or transformation is required (at [32]).
·     the fact that a physical effect is required does not make it sufficient to confer patentability;
·     the fact that a method may be called a business method does not prevent it being properly the subject of letters patent (Grant at [26] citing Catuity at [125]-[126]);
·     the fact that for claimed computer programs, the courts look to the application of the program to produce a practical and useful result, so that more than ‘intellectual information’ is involved (Grant at [29]). A method that is in the nature of directions for use does not constitute an invention or a manner of manufacture in the absence of some previously unrecognised property of an aspect of the method (Grant at [29]).”[104] (emphasis added)
[104] Research Affiliates at [94].

102. In considering the substance of the invention the Full Court went on to say:
“In the context of the claim, the significance lies in the content of the data rather than any specific effect generated by the computer. The computer-implementation is an essential integer of the claimed process. That is, of course, important. It is of particular importance in the assessment of, for example, novelty and infringement. However, in examining whether a claimed invention is properly the subject of letters patent, it is necessary to look not only at the integers of that claimed invention but also at the substance of that invention.
The claimed method in this case clearly involves what may well be an inventive idea, but it is an abstract idea. The specification makes it apparent that any inventive step arises in the creation of the index as information and as a scheme. There is no suggestion in the specification or the claims that any part of the inventive step lies in the computer implementation. Rather, it is apparent that the scheme is merely implemented in a computer and a standard computer at that. It is not part of the claimed method that there is an improvement in what might broadly be called ‘computer technology’.”[105]
[105] Research Affiliates at [117]-[118].

103. The Full Court in Encompass Pty Ltd v InfoTrack Pty Ltd[106]did not find it necessary to revisit the correctness of RPL Central or Research Affiliates, explaining that:
[106] [2019] FCAFC 161; 372 ALR 646 (Encompass).
“In each case, the Full Court was seeking to describe the conceptual distinction between a manner of manufacture and an unpatentable abstraction. In each case, the Full Court was explaining that a claimed method that is unpatentable does not change its legal character merely because the method is implemented by the instrumentality of a computer.”[107]
[107] Encompass at [91].

104. In a similar vein, the Full Court in Commissioner of Patents v Aristocrat Technologies Australia Pty Ltd[108] observed recently in relation to a claim defining an electronic gaming machine (EGM) with a particular feature game:
[108] [2021] FCAFC 202; 163 IPR 231 (Aristocrat ’21).
“What this purpose-specific but extremely common computer does is play the feature game. Consequently, the substance of the invention disclosed by Claim 1 is that feature game implemented on the computer which is an EGM. It is therefore a computer-implemented invention.
As we have already observed, integers 1.10-1.12 embody an abstract idea which may be characterised both as a set of rules defining a family of games and as a business scheme for increasing player interest in an EGM. As such its implementation in the computer which is an EGM cannot constitute patentable subject matter unless it represents an advance in computer technology.”[109]
[109] Aristocrat ’21 at [56]-[57].

105. The delegate in Aristocrat Technologies Australia Pty Ltd[110]summarised the considerations arising from RPL Central which are relevant to assessing whether a computer-implemented invention is in substance a manner of manufacture. These considerations, which remain relevant in view of the subsequent Full Court decisions, are:
[110] [2016] APO 49 (Aristocrat ’16).
“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.”[111]
[111] Aristocrat ’16 at [35].

What is the subject matter of the claims?
106. My previous discussion on the invention as claimed sets out the subject matter of the claims. To summarise, claim 1 is directed to a computer-implemented method of predicting changes in market share responsive to a marketing communications campaign associated with a target brand. Claim 10 is directed to a computer system comprising hardware components and computer programs for carrying out the steps of the method of claim 1. Claim 20 directed to a computer program product which is characterised by the instructions it stores for a processor to carry out the steps of the method of claim 1.
What is the contribution to the claimed invention?
107. The applicant submitted:
“The present invention relates to the fields of data analytics and marketing science, and more particularly to modelling and predicting the impact of marketing communications (e.g. advertising) on market share and commercial outcomes. The invention is computer-implemented. In particular, it is implemented by providing specific programming for execution on conventional hardware platforms. The specification explains that ‘embodiments of the invention involve the implementation of software structures and code that are not well-understood, routine, or conventional in the art of market modeling and analytics, and that while pre-existing languages, frameworks, platforms, development environments, and code libraries may assist implementation, they require specific configuration and extensive augmentation (i.e. additional code development) in order to realize various benefits and advantages of the invention and implement the specific structures, processing, computations, and algorithms…’. That is to say, the specification expressly asserts ingenuity in the programming and operation of computers.”[112](emphasis added)
[112] Applicant’s written submissions at [25].

108. The applicant characterised the invention as:
“a decision support tool for use in a business, rather than as a ‘business method’.”[113]
[113] Applicant’s written submissions at [27].

109. The applicant’s submissions regarding claim 1, quoted earlier in this decision, also contain aspects regarding the inventors’ contribution. I will now address the applicant’s submissions regarding the inventors’ contribution to the claimed invention.
110. I understand the applicant’s submissions regarding the inventors’ contribution to be a particular method of computation which predicts changes in market shares responsive to a marketing campaign, and the implementation of this computation method in a computer. The method of computation is submitted to be based on statistical models which are embodied in specific computer programming or software components. The implementation of the software components in a computer is submitted to result in the calculation of quantitative intelligence which is used to inform business decisions.[114]
[114] Applicant’s written submissions at [37].
111. I have previously found that integers (ii) and (iv)-(vii) of claim 1 each define a computation step in functional terms and do not define any specific statistical model or algorithm which performs the computation step. I found no specific programming to be defined in claim 1. The specifics of how the computation is done is not described in the specification but left as an exercise for the skilled addressee.

112. I accept the applicant’s submissions that the specification does state that implementation of software structures and code are not well-understood, routine, or conventional in the art of market modelling and analytics, and that specific configuration and extensive augmentation (i.e., additional code development) is required to implement the specific structures, computations and algorithms of the invention. Notwithstanding that statement, the specification does not describe any additional computer code which was developed to implement the statistical models or mathematical algorithms of the claimed invention. The specification also does not describe any technical problems encountered in implementing the statistical models or mathematical algorithms as computer programs. Instead, the specification describes that a complex statistical modelling algorithm, structural equational modelling, “can readily be implemented as a software module”.[115]
[115] Specification at [0042].

113. Consistent with the description in the specification that a skilled addressee can readily implement mathematical algorithms as software modules and the applicant’s submissions quoted below which indicate the skilled addressee did not encounter any technical difficulties when translating a suitably designed model into computer program code and software framework, I understand the skilled addressee comprises a team including persons who have expertise in computer programming.
114. The applicant submitted that:
“While the specification acknowledges that existing library code can be used to perform fitting of statistical models, the design of a suitable model, with coefficients having the required interpretation, must be tailored to the application, and forms part of the inventors’ contribution to the field. Far from informing the reader that the modelling can be implemented in ‘any suitable manner’ (or similar language, as was used in the patent specifications considered in Encompass, Rokt, and other cases), the present specification provides a specific pseudo-code algorithm (i.e. Algorithm 1) leaving the skilled addressee with the task only of translating this into a selected programming language and framework.”[116] (emphasis added)
[116] Applicant’s written submissions at [33].

115. The specification describes pseudocode Algorithm 1 in terms of the types of information which form input for statistical modelling and computing coefficients which represent the importance of an attribute on consumer’s choice of a brand. I consider this to be a high-level description which does not disclose specifics about how the modelling and computation are done, leaving the design of suitable statistical models to the skilled person. I previously interpreted the specification to describe that designing a suitable model to reflect market survey data is within the normal skill set of the person skilled in the art of statistical modelling. While complex mathematical techniques may be involved,[117] these techniques are known. Therefore, I consider the skilled person possesses the technical knowledge necessary to design suitable statistical models.
[117] Applicant’s written submissions at [29], Roberts at [8].
116. In summary, I consider that the contribution of the invention does not reside in the design of suitable statistical models or the implementation of mathematical algorithms as computer modules or programs. For completeness, I note the specification does not describe any technical problems addressed for the steps of retrieving market research data from the data store. I consider no technical contribution resides in implementing any of the steps of retrieving market research data.

117. I will consider the full range of considerations before characterising the substance of the claimed invention.
Does the invention as claimed solve a technical problem in the computer or outside the computer?
118. While the computer programs of the claimed invention may be embodied in the form of mathematical algorithms which represent complex statistical models, I have previously found no technical problems were addressed in designing the statistical models, or when implementing statistical algorithms as computer programs in a computer. Therefore, I consider the invention as claimed does not solve a technical problem in the computer.

119. The applicant submitted several questions are addressed by the claimed invention:
“There is, without doubt, a business process within which the invention may be deployed. This process might broadly be characterised as: conduct market surveys to assess consumer sentiment; develop and test advertising designed to improve consumer sentiment; and execute an advertising campaign in the expectation that improved consumer sentiment will result in increased market share. However, none of the steps of this marketing scheme form part of the claimed invention. Rather, the invention addresses critical questions that are left unanswered within the marketing scheme. How should the marketing communications be designed to maximise a positive shift in consumer sentiment? How can the effectiveness of the communications in achieving this goal be determined? Can an expected change in market share be predicted before investing in an expensive marketing campaign? And, if so, how can an expected return on the investment be determined, to support the business decision to proceed with the campaign?”[118] (emphasis added)
[118] Applicant’s written submissions at [28].

120. I consider these questions to address a business problem, not a technological problem. Specifically, they are directed to revealing how to improve the effectiveness of advertising campaigns to grow the market share of the business.
121. I conclude the invention as claimed does not solve a technical problem in the computer or outside of the computer.
Is there an improvement in the functioning of the computer?
122. The applicant submitted:
“The applicant’s commercial implementation of the invention comprises a software platform that provides a single operator interface that integrates the equivalent expertise of numerous specialists. The synergistic result achieved by this platform is that it makes the benefits of the applicant’s sophisticated analytics technologies directly accessible to non-specialists, such as business decision-makers. The invention may be used to support financial decisions, such as the most effective way to invest tens of millions of dollars in advertising spend.”[119]
[119] Applicant’s written submissions at [30].

123. At the oral hearing the applicant drew an analogy between what is submitted as “a software platform that provides a single operator interface” of the present invention and the touch sensitive electronic display (also referred to as “user interface”) of the gaming machine considered in Aristocrat ’16 to argue that the presently claimed invention is for a manner of manufacture.
124. I note the delegate in Aristocrat ’16 found the substance of the invention in that case to be the presentation of game information in a way that allowed the game and bet denomination to be selected in a single action. The delegate also found that it was not normal to configure a gaming machine interface in this way, and positioning information in a particular location generated functionality to improve the gaming machine. The contribution was found to be technical in nature and achieved a practical and useful result.[120] Since a technical contribution resides in the operation of the interface of the gaming machine in Aristocrat ’16, I consider the claimed invention involves an improvement in the functioning of a computer.
[120] Aristocrat ’16 at [48].

125. The specification of the present application does not explicitly describe or claim a computer software platform having a single operator interface. Given the emphasis the applicant placed on this aspect of their submissions, I have reviewed the specification to see how this aspect is described. Figure 8 shows an embodiment of the invention having a web-based graphical interface which enables a user to interact with to the ROI (Return On Investment) modelling module using a computer terminal and standard web browser application. As I previously discussed, a user can adjust or review financial input via text boxes on the web-based graphical interface, input the amount they wish to spend on advertising channels using other text boxes, and then click the “calculate NPV” button to instruct the ROI modelling module to compute NPV (net present value) and other commercial outcomes.

126. The specification describes that the web-based graphical interface of Figure 8 is implemented using standard web technologies, such as conventional hypertext transfer protocol (HTTP), hypertext markup language (HTML) or Javascript, and a user on a computer terminal can interact with the server using a standard web browser software.[121] Therefore, the web-based graphical interface is not described in the specification to solve any technical problem or to improve the functioning of a computer. I also consider no technical contribution resides in the way information can be presented or arranged on the web-based graphical interface of the embodiment of the invention.
[121] Specification at [0026] and [0075].
127. I accept the applicant’s submissions that the claimed invention makes the benefits of the applicant’s sophisticated analytics technologies directly accessible to non-specialists, such as business decision-makers. Implementing the applicant’s combination of computer programs on a computer modifies the operation of the computer in the sense that the computer can perform steps of new algorithms which had not been performed before. However, the computer operates in a normal way involving standard computer functions of retrieving data and computing values. The applicant’s implementation of computer programs on a computer is not an improvement in the functioning of a computer when considering manner of manufacture.[122]
[122] Commissioner of Patents v Rokt Pte Ltd [2020] FCAFC 86 at [98]; (2020) 152 IPR 1.
Does the invention use generic computer technology?
128. I am aware of statements made by the majority of the Court in Aristocrat ’21 concerning inquiries into whether “generic computer technology” or “generic software” have been used to implement the invention. The majority made clear that a finding that the use of a generic computer to implement an invention does not preclude a finding that there can be, what is characterised broadly as, an advance in computer technology.[123] The meaning of generic computer technology was elaborated on by Nicholas J as being “purely conventional, and is utilised for its well-known and well-understood effects”[124]
[123] Aristocrat ’21 at [35]-[38].
[124] Aristocrat ’21 at [112].
129. As previously discussed, the specification described the execution of computer programs embodying the statistical modelling and mathematical methods of the claimed invention using conventional computer technology. The applicant submitted that “conventional hardware platforms” are used to implement the analytical and computational methods.[125] I have previously discussed the computer programs were disclosed in the specification at a high-level and no specific programming was described in the specification or defined in the claims. I consider the execution of computer programs which have been disclosed at a high-level on a conventional computer is use of computer technology for its well-known and well-understood effects. The specification also did not disclose there were any unusual computing effects. Accordingly, I consider that the invention uses generic computer technology.
[125] Applicant’s written submissions at [25].
Are there any steps which are foreign to the normal use of computers?
130. The applicant submitted:
“The invention thus involves the application of statistical model-fitting and prediction techniques, along with other mathematical techniques recited in the claimed method, for a new and useful purpose. This is, we submit, analogous to the application of known mathematical techniques (e.g. ‘computing forward difference interval coefficient integers’) recited in the claims in IBM. The end result is, in the same sense as in IBM, a series of steps that – despite employing certain known operations – is ‘foreign to the normal use of computers’. Prior to the development of the invention, it simply was not possible to obtain the information that it provides in the claimed manner, and it was not known how a computer could be used to achieve that outcome.”[126]
[126] Applicant’s written submissions at [38]. IBM is a reference to the Federal Court case, International Business Machines Corporation v Commissioner of Patents, [1991] FCA 625.

131. The invention in IBM involved the use of a mathematical algorithm in a computer to efficiently produce a smooth curve image, regardless of the specific application and purpose of the curve. This can be characterised as an improvement to the graphical abilities of the computer, hence an improvement in computer technology. Contrasted with the normally used non-integer arithmetic, the specification in IBM described a method which drastically reduced the use of non-integer numbers when calculating the coordinates of each point in a curve. Thus, the claimed invention generated smooth curves more efficiently using steps which were foreign to the normal use of a computer.
132. While use of the applicant’s combination of mathematical algorithms embodied in computer programs may not have been known prior to development of the present invention, I consider this to be an observation regarding the novelty of the steps of algorithms themselves. Akin to the Encompass case, I consider the new mathematical algorithms of the present invention are really an idea for a computer program, it being left to those wishing to use the method to devise and implement a suitable computer program for that purpose.[127] The claims of the present application do not claim any specific software or computer programming that would carry out the method. As the majority in Aristocrat ’21 observed, it is possible for a computer-implemented invention which is novel to fail to constitute an advance in computer technology.[128]
[127] Encompass at [100]-[101].
[128] Aristocrat ’21 at [93].

133. As previously discussed, using a computer to execute computer programs which have been defined at a high-level is use of computer technology for its well-known and well-understood effects. Therefore, I consider the claimed invention does not include performing steps in a computer which are foreign to the normal use of a computer.
Is there a practical and useful result?
134. The applicant submitted:
“For a user of the system, the results produced at integers (ii) and (iv)-(vii) are not in any way abstract. They comprise quantitative, actionable intelligence, made available directly as a result of execution of the steps in the claimed method.”[129]
[129] Applicant’s written submissions at [37]. The integers which are referenced in the written submissions are the integers of claim 1 of the present application.

135. I accept that the computing steps of claim 1 produces intelligence, that being intellectual information, which can quantify a predicted effectiveness of proposed advertising campaigns for a business. I understand the business intelligence is useful to inform investment decisions and therefore of economic significance.
136. The question is whether there is a “practical and useful result” which is relevant for considering what may be patentable. In Research Affiliates it was stated that it is not an artificial or patentable effect to merely implement a scheme:
“To take the words of NRDC at CLR 268…, the process does not produce ‘either immediately or ultimately, a useful physical result in relation to a material or tangible entity’. The claimed method, the result of the ingenuity of the inventors, does not produce such a result; the ingenuity is in the scheme. Again, drawing from NRDC at CLR 270…, there is a useful result of the claimed process but there is no physical thing ‘brought into existence or so affected as the better to serve man’s purposes’. There is no ‘physical phenomenon in which the effect, be it creation or merely alteration, may be observed’: NRDC at CLR 276…”[130]
[130] Research Affiliates at [114].

137. The method of the claim 1 implements a set of steps using a computer to calculate values to predict changes in market share responsive to a marketing communications campaign. The specification did not describe any artificial effect or technical contribution, by reason of the intervention of the inventors, in implementing the computer programs which carry out the steps to calculate the values which represent business information.
138. I consider the business information produced by the steps of claim 1 of the present application to be no more than intellectual information. While useful, this information is intangible in the sense that it is a forecast of the market share of a business if it proceeded with a proposed advertising campaign. Therefore, I do not consider the claimed invention has a relevant “practical and useful result” for the purposes of what may be considered patentable. No physical thing or phenomenon has been brought into existence as a result of the inventors’ ingenuity. While the present invention processes information to give better, more commercially useful information, it is akin to the Research Affiliates case where “[t]he 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.”[131]
[131] ibid.
Does the invention lie in the generation, presentation or arrangement of intellectual information?
139. While the implementation of the claimed invention generates business information, I consider the invention does not lie merely in the generation, presentation or arrangement of intellectual information. As previously discussed, executing computer programs which carry out calculations embodied by mathematical algorithms is use of computer technology for its well-known effects.
Balance of considerations
140. I have previously found all steps of the computer-implemented method of claim 1 to be defined in functional terms, that is, at a high-level. Each computing step is not limited to any specific statistical model or algorithm. I characterise claim 1 to be an instruction to apply the steps of the method using a computer. The computer calculates a set of values (coefficient or measure) using market research survey data to predict changes in market share responsive to a proposed advertising campaign.
141. I found the computer-implemented method to address business problems and does not solve a technological problem in the computer or outside of a computer. The specification did not describe any technical contribution to the invention in the design of statistical models or in the implementation of the method steps on a computer.

142. While implementing the the applicant’s combination of computer programs on a computer makes the benefits of the applicant’s sophisticated analytics technologies directly accessible to non-specialists, this was found not to be an improvement in the functioning of a computer when considering whether there is patent-eligible subject matter.

143. The claimed computer-implemented method produces business information which is of economic significance to decision-makers of businesses. I consider the claimed method is a business innovation. As I noted earlier, the business information produced by the claimed method is no more than intellectual information. Therefore, I considered the computer-implemented method does not produce a relevant “practical and useful result” for the purposes of what may be considered patentable.

144. On balance, I characterise the method of claim 1 to be an instruction to apply an abstract idea using a computer. The abstract idea, in the sense of an intangible concept, is a method for producing business information to predict changes in market share in response to a proposed advertising campaign. I have found there is no technical contribution to the invention or artificial effect of the invention by reason of the intervention of the inventors. I consider the ingenuity is in the abstract idea, which is not patentable. The recent Full Court cases, cited earlier in my decision, have demonstrated that implementing an abstract idea using a computer without “something more” is not enough to transform unpatentable subject matter into patentable subject matter. I conclude the substance of the invention of claim 1 is an abstract idea.

145. Claim 10 is directed to a computing system which implements the method of claim 1. While the computing system is defined to include computer hardware and software components, these are well-known computer technology components which did not provide a technical contribution to the invention. The computer technology components defined in claim 10 do not alter the balance of considerations for the claim. I conclude the substance of the invention of claim 10 is an abstract idea.

146. Claim 20 is directed to a computer program product which is characterised by the instructions it stores for a processor to carry out the steps of the method of claim 1. The balance of considerations for this claim follows from the consideration of claim 1. I conclude the substance of the invention of claim 20 is an abstract idea.

147. I have previously discussed the further features defined in each of appended claims 2-9, and 11-19. I consider the further features do not alter the balance of considerations for the claims. I conclude the substance of the invention in each of appended claims 2-9, and 11-19 is an abstract idea.
Conclusion
148. The invention claimed in each of claims 1-20 is not for a manner of manufacture. I have previously discussed the disclosure of the specification and, having reviewed the specification, I can see no subject matter which could be made the subject of a valid claim to overcome this finding. In these circumstances it is appropriate to refuse the application.
Dr A. Lim
Delegate of the Commissioner of Patents
Annex A
1. A computer-implemented method of predicting changes in market share responsive to a marketing communications campaign associated with a target brand, comprising steps of:

retrieving, from a market research data store, first market research survey data relating to rational and emotional drivers of consumer choice
computing a first plurality of coefficients of a first statistical model corresponding with the first market research survey data, wherein each coefficient represents a relative impact of an associated driver of consumer choice;
retrieving, from the market research data store, second market research survey data relating to consumer response to marketing communications content that has been developed based upon leading drivers of consumer choice identified from the coefficients of the first statistical model;
computing, using the first statistical model and second market research survey data, predicted changes in attributes of the target brand corresponding with the leading drivers of consumer choice resulting from the marketing communications content;

computing, using the predicted changes in attributes of the target brand and current market share data, a predicted efficacy measure of the marketing communications content in changing market share of the target brand;
computing a modified efficacy measure, based upon the predicted efficacy measure, a measure of communications media efficiency, a measure of consumer recognition of the marketing communications content, and a measure of consumer linkage of the marketing communications content to the target brand;
computing, using the modified efficacy measure along with provided financial factor data, one or more measures of commercial outcome from the marketing communications campaign.

2. The method of claim 1 wherein the predicted efficacy measure is a numerical value ɳ, the measure of consumer recognition is a numerical value g_r, the measure of consumer linkage of the marketing communications content to the target brand is a numerical value g_l, the measure of communications media efficiency is a numerical value µ_e, and the modified efficacy is a numerical value ɳ’ which is computed according to the formula:
ɳ’ = (ɳ x g_r x g_l) x µ_e

3. The method of claim 2 wherein the communications media efficiency value µ_e is computed using a media mix modeling algorithm.
4. The method of any one of claims 1 to 3 wherein the first statistical model comprises a hierarchical Bayesian model.
5. The method of claim 4 wherein the consumer choice is represented as the dependent variable of the hierarchical Bayesian model, and comprises a consumer first choice (FC) selection derived from the first market research survey data.
6. The method of any one of claims 1 to 5 which further comprises:

retrieving, from the market research data store, consumer value assessment data; and
computing a second plurality of coefficients of a second statistical model, wherein each coefficient represents a relative impact of an associated attribute of the target brand on consumer value assessment.

7. The method of claim 6 wherein:

the second statistical model comprises a linear regression model; and
the consumer value assessment is represented as the dependent variable of the linear regression model, and comprises a consumer worth-what-is-paid (WWP) response derived from the first market research survey data.

8. The method of any one of claims 1 to 7 wherein the provided financial factor data comprises one or more of: weighted average cost of capital (WACC); inflation rate; taxation rates; an investment amount associated with achieving the increase in market share; campaign duration; campaign ramp-up period; and a measure of expected increase in revenues associates with an increase in market share.
9. The method of any one of claims 1 to 8 wherein the measures of commercial outcome from the marketing communications campaign comprise one or more of: net present value (NPV); internal rate of return (IRR); and payback period.
10. A computing system for predicting changes in market share responsive to a marketing communications campaign associated with a target brand, comprising:
a processor;
at least one memory device accessible by the processor; and
at least one market research data store accessible by the processor

wherein the memory device contains a body of program instructions which, when executed by the processor, cause the computing system to implement a marketing analytics system comprising:
a multivariate statistical analysis module which is configured to retrieve, from the market research data store, first market research survey data relating to rational and emotional drivers of consumer choice, and to compute a corresponding first plurality of coefficients of a first statistical model, wherein each coefficient represents a relative impact of an associated driver of consumer choice;
a test response analysis module which is configured to retrieve,
from the market research data store, second market research survey data relating to consumer response to marketing communications content that has been developed based upon leading drivers of consumer choice identified from the coefficients of the first statistical model, and to use the first statistical model and second market research survey data to compute predicted changes in attributes of the target brand corresponding with the leading drivers of consumer choice resulting from the marketing communications content;
a market share simulation module which is configured to compute,
using the predicted changes in attributes of the target brand and current market share data, a predicted efficacy measure of the marketing communications content in changing market share of the target brand;
a return on investment (ROI) modeling module which is configured
to compute a modified efficacy measure, based upon the predicted efficacy measure, a measure of communications media efficiency, a measure of consumer recognition of the marketing communications content, and a measure of consumer linkage of the marketing communications content to the target brand, and to use the modified efficacy measure along with provided financial factor data to compute one or more measures of commercial outcome from the marketing communications campaign.

11. The system of claim 10 wherein the predicted efficacy measure is a numerical value ɳ, the measure of consumer recognition is a numerical value g_r, the measure of consumer linkage of the marketing communications content to the target brand is a numerical value g_l, the measure of communications media efficiency is a numerical value µ_e, and the modified efficacy is a numerical value ɳ’ which is computed according to the formula:
ɳ’ = (ɳ x g_r x g_l) x µ_e

12. The system of claim 11 wherein the communications media efficiency value µ_e is computed using a media mix modeling algorithm.
13. The system of claim 10 or claim 11 wherein the first statistical model comprises a hierarchical Bayesian model.
14. The system of claim 13 wherein the consumer choice is represented as the dependent variable of the hierarchical Bayesian model, and comprises a consumer first choice (FC) selection derived from the first market research survey data.
15. The system of any one of claims 10 to 14 wherein the provided financial factor data comprises one or more of: weighted average cost of capital (WACC); inflation rate; taxation rates; an investment amount associated with achieving the increase in market share; campaign duration; campaign ramp-up period; and a measure of expected increase in revenues associates with an increase in market share.
16. The system of any one of claims 10 to 15 wherein the measures of commercial outcome from the marketing communications campaign comprise one or more of: net present value (NPV); internal rate of return (IRR); and payback period.
17. The system of any one of claims 10 to 16 wherein the multivariate statistical analysis module is further configured to retrieve, from the market research data store, consumer value assessment data, and to compute a second plurality of coefficients of a second statistical model, wherein each coefficient represents a relative impact of an associated attribute of the target brand on consumer value assessment.
18. The system of claim 17 wherein:
the second statistical model comprises a linear regression model; and
the consumer value assessment is represented as the dependent variable of the linear regression model, and comprises a consumer worth-what-is-paid (WWP) response derived from the first market research survey data.

19. The system of any one of claims 10 to 18 wherein the body of program instructions further includes instructions implementing a client interface module which is configured to enable a user to interact with the market share simulation module and the ROI modeling module via a graphical interface of a client terminal.
20. A computer program product comprising a computer-readable medium having instructions stored thereon which, when executed by a processor implement a method comprising:

retrieving, from a market research data store, first market research survey data relating to rational and emotional drivers of consumer choice
computing a first plurality of coefficients of a first statistical model corresponding with the first market research survey data, wherein each coefficient represents a relative impact of an associated driver of consumer choice;
retrieving, from the market research data store, second market research survey data relating to consumer response to marketing communications content that has been developed based upon leading drivers of consumer choice identified from the coefficients of the first statistical model;
computing, using the first statistical model and second market research survey data, predicted changes in attributes of the target brand corresponding with the leading drivers of consumer choice resulting from the marketing communications content;
computing, using the predicted changes in attributes of the target brand and current market share data, a predicted efficacy measure of the marketing communications content in changing market share of the target brand;
computing a modified efficacy measure, based upon the predicted efficacy measure, a measure of communications media efficiency, a measure of consumer recognition of the marketing communications content, and a measure of consumer linkage of the marketing communications content to the target brand;
computing, using the modified efficacy measure along with provided financial factor data, one or more measures of commercial outcome from the marketing communications campaign.