Joy Global Surface Mining Inc - [2018] APO 68

IP AUSTRALIA
AUSTRALIAN PATENT OFFICE
Joy Global Surface Mining Inc [2018] APO 68

Patent Application: 2016201890

Title:Depth-related help functions for a wheel loader training simulator

Patent Applicant:                   Joy Global Surface Mining Inc
Delegate:  Isaac Tan
Decision Date:  5 October 2018
Hearing Date:  Written Submissions filed 5 July 2018

Catchwords: PATENTS – section 45 – examiner objection hearing – manner of manufacture under section 18(1)(a) – computer implemented invention – substance of the invention relates to the presentation, and communication, of intellectual information – the invention is a training simulator which provides proper depth perspectives within the virtual training environment – contribution to the art is not technical – invention does not open the way for the computer to be used more efficiently than had been previously possible – claims are not directed towards a manner of manufacture – lack of support under section 40(3) – no determination made on whether the claims are supported by the disclosure in the body of the specification – application refused
Representation: Greg Munt, Patent Attorney of Griffith Hack

IP AUSTRALIA
AUSTRALIAN PATENT OFFICE
Patent Application: 2016201890

Title:Depth-related help functions for a wheel loader training simulator

Patent Applicant: Joy Global Surface Mining Inc
Date of Decision: 5 October 2018
DECISION
I find that the claimed invention is not for a manner of manufacture.
I direct that the application be refused.
REASONS FOR DECISION
Background

Harnischfeger Technologies, Inc. (Harnischfeger) filed patent application 2016201890 (application) on 24 March 2016. The application is a divisional application based on patent applications 2014202349 and 2013209300, and claims an early priority date of 2 August 2012.
Harnischfeger requested examination on 16 May 2016, and proposed amendments to the claims and description of the specification. The application was subjected to four (4) examination reports respectively dated 28 April 2017, 12 December 2017, 27 February 2018 and 27 April 2018. Following the fourth report, on 30 April 2018, Harnischfeger requested to be heard. The 30 April 2018 is also the final date of acceptance, as it is the first business day following the one year anniversary of when the first examination report was issued.
In response to the request to be heard, Harnischfeger was invited to provide written submissions. Harnischfeger’s written submission was filed on 5 July 2018.
On 25 September 2018, a request was filed to amend the patent register to record the merger of Harnischfeger Technologies, Inc. and Joy Global Surface Mining Inc. The assignment request was allowed on 28 September 2018, and the application will now proceed in the name of Joy Global Surface Mining Inc. (applicant).
Specification
The specification states that the invention relates to methods and systems for training operators of industrial machines, such as shovels and wheel loaders in a simulated environment. Some examples of industrial machines include electric rope or power shovels, draglines and wheel loaders. These machines are used to remove material from a bank of a mine.
However, these machines have a high cost, and properly training an operator is important to ensure that the industrial machine is operated efficiently to maximise the value obtained from use of the machine. Therefore, computer-based training simulators are used to train operators. Computer-based simulators generate a simulated training environment that provides a simulated machine, such as a simulated shovel and/or simulated wheel loader, and a simulated working environment. Typically, the training environment is displayed on at least one monitor or screen, which is two-dimensional.
In this respect, the specification states that it is difficult to provide proper depth perspectives within the training environment as even if a three-dimensional training environment is generated using computer based technology, it is limited by the two-dimensional nature of the monitor or screen. The importance of proper depth perspectives is further explained:[1]
Depth is an important aspect of operating an industrial machine in a real-world environment. For example, when operating a shovel, an operator must properly position the dipper with respect to the bank to prevent digging beneath the level-grade plane of the bank. In addition, an operator must properly position the dipper over the bed of the haul truck to ensure materials in the dipper are deposited into the truck. Similarly, when operating a wheel loader, an operator must properly position the wheel loader’s bucket with respect to a haul truck and must keep a level when digging. Furthermore, when operating the wheel loader, an operator controls various operations of the bucket (e.g., height, position, angle, etc.) that must be performed properly to ensure proper operation of the wheel loader. Without having proper depth perspectives for these tasks, a training simulator may not properly train an operator to perform these and other tasks with a shovel or wheel loader.
[1] The specification, [0005].
To address this concern, the specification describes a method for providing a method for training an operator of a shovel. The specification describes, in one embodiment:[2]
One method includes generating, with a processor, a simulated training environment including a simulated shovel having a simulated dipper and displaying an indicator within the simulated training environment marking at least a portion of a low-grade plane. The method also includes determining if at least a portion of the simulated dipper is below the low-grade plane based on a position of the dipper within the simulated training environment, and, when at least a portion of the simulated dipper is below the low-grade plane, providing at least one warning to an operator of the simulated shovel.
[2] Ibid [0006].
In another embodiment:[3]
Another method includes generating, with a processor, a simulated training environment including a simulated haul truck and a simulated shovel having a simulated dipper and displaying an indicator within the simulated training environment of at least a portion of a swing path of the simulated dipper. The method also includes determining if the simulated dipper is positioned within a predetermined distance from the simulated haul truck, and alerting the operator when the simulated dipper is positioned within the predetermined distance from the simulated haul truck.
[3] Ibid [0007].
The specification goes on to describe a number of alternative embodiments from which the invention could be performed. However, common between each embodiment is that depth related information is conveyed to the user in some manner which will be discussed in further detail below.
In order to appreciate the invention, it is helpful to consider the detailed description of the invention which is provided by reference to 31 figures. Figure 1 is said to illustrate a system for training an operator according to an embodiment of the invention, and is provided as follows:
The system includes a computing device (10), which may be comprised from various combinations of hardware and software. The input device (20) ‘can include a device controlled by an operator to issue operating commands for the simulated machine…and/or select operating parameters for the simulated working environment...the input device 20 can include a keyboard, a joystick, a mouse, a touchscreen, a trackball, tactile buttons, a pedal, etc.’[4] The output device (22) ‘can include at least one monitor or screen…that displays the generated simulated training environment to the operator.’[5] In an alternative embodiment, ‘the computing device 10 is a dedicated device providing simulated training and is included as part of a console that includes mock shovel interiors mounted on a platform to simulated an actual shovel.’[6] However, it is envisaged that the invention can be worked using a standard computer, involving conventional peripherals such as a keyboard or mouse, wherein the controls can be the arrow keys of the keyboard for instance.
[4] Ibid [0029]
[5] Ibid [0030]
[6] Ibid [0027]
Some examples of what the simulated training environment may look like are illustrated in Figures 2 to 4. Figure 2 is shown below:
In Figure 2, ‘the training environment can include a simulated shovel 50, which includes a simulated dipper 55.’[7] This appears to depict the view a user may be presented with when seated in the shovel or wheel loader. However, the simulated training environment may also be displayed from a different perspective, such as that shown in Figure 4, shown below:
[7] Ibid [0032]
It is worth noting that the view shown in Figure 4 is not a view an operator would see when using the equipment. The manner, of which training information is provided to the operator via the use of indicators, is shown in a series of Figures, starting with Figure 5a shown below:
Figure 5 is an example of the ‘level-grade detection function’ provided by the application, which ‘detects when an operator is digging with the simulated dipper 55 beneath the level-grade plane 65…within the simulated training environment‘,[8] and displays an indicator (80) to help ‘operators gain perspective when trying to place teeth of the dipper 55 in the appropriate area of the bank’.[9] This can be achieving by the indicator colouring or highlighting the portion of the ground, or alternatively, may include ‘a marker or symbol, an outline or line, or animation…in place of or in addition to the highlighted area.’[10]
[8] Ibid [0033]
[9] Ibid [0034]
[10] Ibid [0034]
Another embodiment of how information is conveyed to the operator is shown in Figure 10a, reproduced below:
In figure 10a, it can be seen (with difficulty) that a simulated line (203) has been superimposed on the image that the operator sees, as well as the image of the side of the truck (which the operator can see on the screen but would not be able to see in reality).[11]
[11] Ibid [0042]
Noting the above, while the system is said to be for training an operator,[12] this is not immediately apparent to me. If the system is, as broadly construed, directed towards a standard computer involving conventional peripherals, then at best it would be reasonable to infer that the operator would become familiar with the basic movements of the industrial machine. Specifically, the system provides the user with feedback which indicates whether the operator is operating the machine correctly. However, in my view, it is not apparently how the operator would or could apply this learning in the real world. For example, where the system consists of conventional peripherals, it is unlikely that such peripherals would accurately reflect the controls of a machine in the real world. Moreover, it does not follow that upon using the system, an operator would be deemed competent and fully capable to operate a machine in the real world.
[12] Ibid [0002]
The claims
The specification, as proposed to be amended, ends with 23 claims of which claim 1, 3 and 18 are independent. These claims read as follow:
Claim 1
A system for training an operator, the system comprising:
a computing device including a processing unit and computer-readable
medium, the computer-readable medium storing a training simulator application;
a display device, and an input device in communication with the
computing device and controllable by an operator for issuing operating commands
in the training simulator application;
wherein the training simulator application, when executed by the
processing unit, is configured to:
receive an operating command from the operator through use of the
input device,
generate a two-dimensional simulated training environment
representative of a three-dimensional real world working environment on
the display device, the two-dimensional simulated training environment
including a simulated ground plane representative of a real world ground
plane and a simulated wheel loader representative of a real world wheel
loader, the simulated wheel loader having a simulated bucket, the simulated
wheel loader and the simulated bucket positioned and movable within the
two-dimensional simulated training environment in response to the
operating command received from the operator through use of the input
device,
the application further configured to:
detect a current position of a simulated level-grade plane within the
simulated ground plane, the simulated level-grade plane representative of a
real world level-grade plane,
detect a current position of at least a portion of the simulated wheel
loader within the two-dimensional simulated training environment,
determine when at least a portion of the simulated wheel loader is
below the simulated level-grade plane based on the current position of at least a portion of the simulated wheel loader and the current position of the
simulated level-grade plane,
when at least a portion of the simulated wheel loader is below the
simulated level-grade plane thereby representing a portion of the real world
wheel loader located below a real world level-grade plane, generate and
display an indicator having a first physical attribute, wherein the indicator
marks at least a portion of the simulated level-grade plane within the
simulated ground plane; and
when at least a portion of the simulated wheel loader is not below
the simulated level-grade plane thereby representing a portion of the real
world wheel loader located that is not below the real world level-grade
plane, generate and display the indicator having a second physical attribute,
wherein the second physical attribute differs from the first physical attribute
by at least one selected from the group comprising a color, a size, a shape,
a pattern, and an animation.
Claim 3
A method for training an operator of a wheel loader, the method
comprising:
generating, with a processor, a two-dimensional simulated training
environment representative of a three-dimensional real world working
environment, the two-dimensional simulated training environment including a
simulated haul truck representative of a real world haul truck and a simulated wheel
loader representative of a real world wheel loader, the simulated wheel loader
having a simulated bucket;
detecting a current position of at least a portion of the simulated haul
truck;
detecting a current position of at least a portion of the simulated wheel
loader with respect to the simulated haul truck within the two-dimensional
simulated training environment;
determining a recommended maneuver of the simulated wheel loader to
interact with the simulated haul truck based on the current position of the at least a
portion of the simulated wheel loader with respect to the current position of the
simulated haul truck;
determining if the simulated wheel loader is following the recommended
maneuver;
when the simulated wheel loader is following the recommended maneuver,
generating and displaying an indicator having a first physical attribute within the
two-dimensional simulated training environment marking the recommended
maneuver of the simulated wheel loader, the recommended maneuver representing
a recommended maneuver of a real world wheel loader; and
when the simulated wheel loader is not following the recommended
maneuver, providing at least one warning to an operator of the simulated wheel
loader, wherein providing the at least one warning to the operator includes
generating and displaying the indicator having a second physical attribute, wherein
the second physical attribute differs from the first physical attribute.
Claim 18
A method for training an operator of a wheel loader, the method
comprising:
generating, with a processor, a two-dimensional simulated training
environment representative of a three-dimensional real world working
environment, the two-dimensional simulated training environment including a
simulated ground plane representative of a real world ground plane and a simulated wheel loader representative of a real world wheel loader, the simulated wheel loader having a simulated bucket, the simulated wheel loader and the simulated bucket positioned and movable within the two-dimensional simulated training environment in response to operating commands issued by the operator through use of an input device;
when an operator operates the input device to cause the simulated wheel
loader to load material into the simulated bucket,
detecting a current position of a simulated level-grade plane within the
simulated ground plane, the simulated level-grade plane representative of a real
world level-grade plane;
detecting a current position of at least a portion of the simulated wheel
loader within the two-dimensional simulated training environment,
determining a recommended angle of the simulated bucket based on the
current position of the at least a portion of the simulated wheel loader with respect
to the current position of the level-grade plane, and
determining if the simulated bucket is positioned at the recommended
angle;
when the simulated bucket is positioned at the recommended angle thereby
representing a real world bucket positioned at the recommended angle, generating
and displaying an indicator having a first physical attribute within the two-dimensional simulated training environment marking the recommended angle of
the simulated bucket; and
when the simulated bucket is not positioned at the recommended angle
thereby representing a real world bucket not positioned at the recommended angle,
alerting the operator, wherein alerting the operator includes generating and
displaying the indicator having a second physical attribute, wherein the second
physical attribute differs from the first physical attribute.
The examiner objections
According to Examination report number 4, which was issued on 27 April 2018 (examination report), the examiner raised objections under the headings ‘Patentable subject matter’ and ‘Section 40 (support, disclosure, clarity, lack of unity).’ Under ‘Patentable subject matter’, the examiner raised an objection indicating that the claims do not define a manner of manufacture. The relevant parts of this objection states:
The substance of the claimed invention is to be determined by considering the claimed invention’s actual or alleged contribution to the art. With regards to this, the claimed invention is described to overcome the set of back of depicting or representing a three-dimensional object into a two-dimensional computer screen. This has been evidently disclosed in paragraphs [0004 – 0005] where it states that the monitor or screen has limitations due to its two-dimensionality aspects. According to the description, in a training environment the two-dimensional nature of the computer screen restricts the illustration of three- dimensionality of a real world object or environment. Hence the alleged invention is overcoming this limitation by receiving an operating command from a user (or operator as defined) to include an “extra dimensionality” perspective to an object displayed in a computer monitor.
The amended claims define a system that can receive an input from a user and generate a two-dimensional simulated environment of a ground plane and a wheel loader with a bucket. The system also takes into account the positional aspects of the objects to be simulated. Taking these into consideration, the system is merely generating an image in relation to a ground (or horizontal) plane. The feature relating to adding a dimensional perspective to a two-dimensional interface is fundamental to the field of computer games and simulation (or the illusion of creating a three-dimension effect). In particular, many games and simulations existed before the priority date of the present applicant, ranging from platform games to sporting simulations that use this technique. An example is computer operated golfing simulations that involve a rear view of play and motion of ball after striking, and an aerial view showing movement of the ball “into” the screen. In other words, techniques which overcome two-dimensional limitations of a computers screen, to depict some motion or action in a third dimension using some means of indication, are well known in the art.
Therefore, the substance of the present invention relates to the contextual simulation of a loader and the visual manner the simulated loader and effects are presented in the virtual environment.

Under ‘Section 40 (support, disclosure, clarity, lack of unity)’, the examiner states:
The invention defined by the claims lacks support under subsection 40(3) because it omits features that ensure that the stated benefits of the described invention are achieved. The described embodiments of the invention are inconsistent with the body of the specification. Independent claim 1 is broad and is inconsistent with the specification. For example the body of the specification describes the projection or simulation of a wheel loader having a simulated bucked [sic] for training purposes. However claim 1 defines a scope that is broader than what described in the body of the specification and is not just limited to a simulating a wheel loader having a bucket. In particular, the claim is not limited to the location of a bucket of a wheel loader and but instead, the broader concept of “a portion of the simulated wheel loader”.
Applicable Law
The request for examination of the present application was filed on 7 June 2015. As a consequence, substantive amendments to the Patents Act 1990 (the Act) bought about by the Intellectual Property Laws Amendment (Raising the Bar) Act 2012 that came into effect on 15 April 2013 applies to the present application.
Therefore, the standard of proof that applies in the present case is the balance of probabilities. I must accept the application if I am satisfied on the balance of probabilities that the application complies with the Act. If I am not so satisfied, then I can refuse the application.
Section 18 of the Act provides for a standard patent:
(1) Subject to subsection (2), an invention is a patentable invention for the purposes of a standard patent if the invention, so far as claimed in any claim:
(a) is a manner of manufacture within the meaning of section 6 of the Statute of Monopolies; and
(b) when compared with the prior art base as it existed before the priority date of that claim:
(i) is novel; and
(ii) involves an inventive step; and
(c) is useful; and
(d) was not secretly used in the patent area before the priority date of that claim by, or on behalf of, or with the authority of, the patentee or nominated person or the patentee's or nominated person's predecessor in title to the invention.
The relevant part of Section 40 of the Act provides as follows:
(3) The claim or claims must be clear and succinct and supported by matter disclosed in the specification.
Case Law on Manner of Manufacture
In National Research Development Corporation v Commissioner of Patents [1959] HCA 67 (NRDC), the High Court provided a statement of the law in this regard:[13]
... 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.
[13] National Research Development Corporation v Commissioner of Patents [1959] HCA 67; (1959) 102 CLR 252, [22].
In discussing the “vendible product” proposition put forward by Morton J in Re G.E.C’s Application, (1942) 60 RPC 1, the High Court in NRDC upheld the validity of a patent for the use of previously unknown properties of a known chemical to effect a new purpose:[14]
The effect produced by the appellant’s method exhibits the two essential qualities upon which “product” and “vendible” seem designed to insist. It is a “product” because it consists in an artificially created state of affairs, discernible by observing over a period the growth of weeds and crops respectively on sown land on which the method has been put into practice. And the significance of the product is economic; for it provides a remarkable advantage ... for one of the most elemental activities by which man has served his material needs, the cultivation of the soil for the production of its fruits.
[14] Ibid [25].
The High Court though was not laying down a precise formulation that can be applied unthinkingly. In D’Arcy v Myriad Genetics Inc [2015] HCA 35 (Myriad) the court considered that:[15]
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.
[15] D'Arcy v Myriad Genetics Inc [2015] HCA 35, [23].
That case-by-case approach must have regard to the substance of the claimed invention, not simply the form of the claim. The point was made succinctly in the Myriad case by Gageler and Nettle JJ:[16]
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.
[16] Ibid [144].
In Commissioner of Patents v RPL Central Pty Ltd [2015] FCAFC 177 (RPL), the Full Court of the Federal Court stated the same thing in the context of an invention that was in substance a scheme:[17]
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.
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.
[17] Commissioner of Patents v RPL Central Pty Ltd [2015] FCAFC 177, [96]-[98].
In Research Affiliates LLC v Commissioner of Patents [2014] FCAFC 150 (Research Affiliates), the Full Court of the Federal Court noted that:[18]
[18] Research Affiliates LLC v Commissioner of Patents [2014] FCAFC 150, [94] citing Grant v Commissioner of Patents [2006] FCAFC 120; (2006) 154 FCR 62; Business Machines Corporation v Commissioner of Patents [1991] FCA 625; (1991) 33 FCR 218; CCOM Pty Limited v Jiejing Pty Limited [1994] FCA 1168; (1994) 51 FCR 260; Welcome Real-Time SA v Catuity Inc [2001] FCA 445; (2001) 113 FCR 110.
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 225-226);
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 295);
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]).
In determining whether an invention contains patentable subject matter, the delegate in Aristocrat Technologies Australia Pty Limited [2016] APO 49 (Aristocrat) provided the following summarisation:[19]
[19] Aristocrat Technologies Australia Pty Limited [2016] APO 49, [35].
I conclude that it is relevant to consider a range of matters. Without seeking to be exhaustive, these include:
·there must be more than an abstract idea, mere scheme or mere intellectual information;
·is the contribution of the claimed invention technical in nature;
·does the invention solve a technical problem within the computer or outside the computer;
·does the invention result in improvement in the functioning of the computer, irrespective of the data being processed;
·does the application of the method produce a practical and useful result;
·can it be broadly described as an improvement in computer technology;
·does the method merely require generic computer implementation;
·is the computer merely an intermediary or tool for performing the method while adding nothing of substance to the idea;
·is there ingenuity in the way in which the computer is utilised;
·does the invention involve steps that are foreign to the normal use of computers; and
·does the invention lie in the generation, presentation or arrangement of intellectual information.
However, in Todd Martin [2017] APO 33, the delegate made the following comments regarding the “range of matters” set down in Aristocrat:[20]
With this list of points, the delegate in the Aristocrat case was not intending to indicate a list of conditions, for computer-implemented cases, to be met to define a manner of manufacture. That is evident from the delegate’s statement that the list was not intended to be exhaustive. Moreover, it would appear improper to find there was a manner of manufacture simply on the basis that one or more points could be answered in favour. In the present case for example, it may be that at least the fifth dot-point, regarding whether the application of the method produces a practical and useful result, is satisfied. On the other hand, that consideration on its own would be insufficient in the present case. Conversely it would also appear improper to find there was no manner of manufacture simply on the basis that one or more points could not be answered favourably. Rather than these points being seen as conditions to be met, they should be seen as relevant matters to consider, as the delegate stated at [35]. The substance and contribution of the claimed invention in each case should be considered on its merits overall and various points under the law would appear to have varying degrees of relevance depending on the case.
[20] Todd Martin [2017] APO 33, [47]; Similar consideration was also applied in Bio-Rad Laboratories, Inc. [2017] APO 38, [37].
Claim Construction
As set out above, the preamble of all the independent claims relates to training an operator, specifically in relation to a wheel loader. According to the Cambridge dictionary, the term ‘training’ is defined as ‘the process of learning the skills you need to do a particular job or activity.’
Claim 1 relates to a system ‘for training an operator’, where ‘for’ should be understood in the normal way as indicating that the system is capable of being used for training an operator. The system can be said to be separated into four sections directed to, respectively, the apparatus, generation of the three-dimensional simulated training environment, detection of the position of elements within said three-dimensional simulated training environment, and the provision of indicators.
Briefly, the first section concerns the physical components of the system, as comprising a processing unit, computer-readable medium, display device and input device. The physical components allow the simulator application to be operated. The second section relates to generation of a two-dimensional simulated training environment representative of a three-dimensional real world working environment. Specifically, the environment is said to include simulations of a level-grade plane, a wheel loader, and a bucket. The third section relates to detecting the position of the wheel loader in relation to the level-grade plane. The fourth section describes indicators as being characterised by ‘a first physical attribute’, and in some circumstances, ‘a second physical attribute’, which ‘differs from the first physical attribute by at least one selected from the group comprising a color, a size, a shape, a pattern, and an animation.’
Relevantly, the some circumstances, which determines whether the indicator is a first physical attribute or a second physical attribute, is dependent on the position of the wheel loader in relation to the level-grade plane.
Claim 3 refers to the manoeuvring of a simulated wheel loader, in a similar manner to claim 1. However, claim 3 differs in that the some circumstances, is dependent on whether the simulated wheel loader is following, or not following, a recommended manoeuvre. In a similar vein, claim 18 refers to the position and angle of the simulated bucket, wherein the some circumstances, depends on whether the simulated bucket is positioned at a recommended angle.
Manner of Manufacture Submissions and Considerations
In setting out their case, the Applicant submitted that:[21]
The present invention results in an artificially created state of affairs in the sense that a material effect is realised – a simulator for training an operator that replicates a real-world wheel loader and the environment around the wheel loader, and that provides an operator with relevant depth perception that replicates actual depth in the real world in the context a real world wheel loader, so that the operator is provided with training in how to efficiently and appropriately operate a real world industrial machine.
The significance of the invention is economic since a significant cost advantage is achieved in terms of i) improved efficiency in operation of a real-world wheel loader and ii) reduced risk of damage to the real-world wheel loader or occurrence of a costly undesireable situation.
[21] The Applicant’s Submission, [51]-[52].
In relation to the examination report, the Applicant further submitted as follows:[22]
It is true that the invention receives inputs from a user in relation to movement of a simulated wheel loader in a simulated working environment, which replicates the movement of a real-world wheel loader in a real-world working environment, but the ‘dimensionality perspective’ is achieved by virtue of a displayed indicator that indicates to the operator when a portion of the simulated wheel loader is below the simulated ground level-grade plane. In other words, movement of the simulated wheel loader by a trainee operator may flag to the operator by virtue of the indicator that an undesirable situation would have occurred in a real-world wheel loader that corresponds to the simulated wheel loader.
[22] Ibid [58].
The Applicant’s position appears to be that the present invention relates to a simulator which is representative of a real world environment such that an operator can be trained for the real world. In contrast, while computer games typically provide a 3D environment, they do not provide an operator with training in how to efficiently and appropriately operate a real world industrial machine. The Applicant submits that the examiner has mischaracterised the invention and that:[23]
[t]he substance of the invention is not simply visual display of a wheel loader and the ‘visual manner’ in which effects, that is, real-world relevant depth information, are presented. The substance relates to a system for training an operator (a ‘simulator’) that replicates a real-world wheel loader and the environment around the wheel loader, and importantly that provides an operator with relevant depth perception that replicates actual depth in the real world in the context a real world wheel loader, so that the operator is provided with training in how to efficiently and appropriately operate a real world industrial machine.
[23] Ibid [62].
I do not disagree that providing an operator with training in how to efficiently and appropriately operate a real world industrial machine does provide a cost advantage in that, said operator is likely to operate a real-world machine in a more efficient manner, and reduces the risk of damage. However, this is not where the substance of the invention lies. As set out above, the claimed invention refers to a computing device consisting of a processing unit, computer-readable medium, display device and input device, characterised by the application it is running. The application consists of simulated elements, and indicators, within a simulated environment, set out above as sections two, three and four. On this basis, it seems clear to me, that the substance of the invention lies in the nature of the application running on the computing device.
To this end, I note that there is an absence of detail within the specification, as to how the simulated environment, and simulated elements, is to be generated. In its plain meaning, the Macquarie Dictionary defines a simulator to be ‘a training or experimental device that simulates movement, flight, or some other condition.’ A similar definition is provided by the Oxford Dictionary as ‘a machine designed to provide a realistic imitation of the controls and operation of a vehicle, aircraft, or other complex system, used for training purposes.’ While the specification does not appear to require this level of realism, I understand that the simulation must be of a sufficient level of detail, that they would be perceived as being a representation of its real world equivalent. That is, an element would be considered simulated if a user, upon viewing the simulated element, would instantly recognise what said simulated is intended to represent in the real world.
On this point, the specification states that it is difficult to provide proper depth perspectives within the training environment even if a three-dimensional training environment is generated using computer based technology. To resolve this, the invention provides indicators within the digital training environment, which informs the user when their action has resulted in an adverse effect. The indicators can be visual, audible or tactile.[24] Alternatively, or additionally, the indicators may include a highlighted area where a shovel is digging, a marker or symbol, an outline or line, or animation (e.g., flashing colours, lines, or shapes) in place or in addition to a highlighted area.[25] The indicator may also comprise a text based warning.[26] In another embodiment, such as described in claim 3, the system detects the position of a simulated wheel loader with respect to a simulated haul truck, determines a recommended manoeuvre, and provides indictor to show if the user is or it not following the recommended manoeuvre. In any event, it is clear that it does not matter what form the indicator takes. What matters is that the indicators convey information to the operator. It would appear that there exists a relationship between how the indicators are utilised within the simulated environment.
[24] The specification as filed, [0033].
[25] Ibid [0034].
[26] Ibid [0036].

It is also worth noting that, as set out above, there is nothing which suggests that the hardware components used to carry out the invention are unconventional. There is nothing preventing the claimed invention to be operated on, for example, a basic computer system and controlled with a keyboard and mouse. While there is a suggestion that the computing device may be included as part of a console that includes mock shovel interiors mounted on a platform to simulate an actual shovel, nothing further is said. Moreover, in my view, mock consoles are commonly used in simulations. Even if the claims were to be amended such that the use of such a console is explicitly mentioned, the question of subject matter eligibility is to be understood as a matter of substance and not merely a matter of form.[27] Therefore, at the level of generality which a mock console is described, I do not consider that this would change the substance of the invention.
[27] Research Affiliates LLC v Commissioner of Patents [2014] FCAFC 150 at [106]; Commissioner of Patents v RPL Central Pty Ltd [2015] FCAFC 177, [98].
However, computer implementation requires more than just the hardware aspects. It is clear in the present case that the implementation resides solely in the software. There must be some consideration of the problem which the invention is said to solve, and the role or importance of the computer system. As outlined above, industrial machines, such as shovels and wheel loaders have a high cost, and properly training an operator is important to ensure that the industrial machine is operated efficiently to maximise the value obtained from use of the machine. The High Court in NRDC identified the qualities of an ‘artificially created state of affairs’ and the ‘economic significance’ as essential for being considered a manner of manufacture.
In this respect, the substance of the invention relates to the presentation, and communication, of intellectual information. That is, the invention has taken the idea of utilising indicators within a simulated environment in order to communicate, to an operator, what an adverse situation looks like. Specifically, the position of a wheel loading in relation to a level-grade plane, whether a wheel loader is following, or not following, a recommended manoeuvre, or if a simulated bucket is not positioned at a recommended angle. In Encompass Corporation Pty Ltd v InfoTrack Pty Ltd [2018] FCA 421 (Encompass), in considering the question of what an improvement in the computer is, Perram J noted:[28]
In some senses, any form of software residing in a computer which performs a task is an improvement in the computer because without it the computer could not perform the task. Plainly, that is not what was intended. Certainly, ‘improvement’ seems designed to capture the computer performing some activity which it was not possible to perform prior to the method. Thus in IBM the method for drawing the curves without using floating point arithmetic opened the way for the computer to be used more efficiently than had been previously possible and, I suppose, the method for using Chinese characters in CCOM might arguably be seen the same way (although that seems less clear to me).
[28] Encompass Corporation Pty Ltd v InfoTrack Pty Ltd [2018] FCA 421, [194].
Noting that the manner in which this information is presented and communication does not appear unconventional, I am inclined to come to the view that the invention does not result in an improvement in the functioning of the computer. It does not appear that the invention as claimed, at least at the level of generality described, could be said to have ‘opened the way for the computer to be used more efficiently than had been previously possible.’ That is, the invention merely utilises technology in the manner which it was designed and intended to be used.[29]
[29] See generally HRB Innovations, Inc. [2018] APO 63; Amplero, Inc. [2018] APO 59.
However, I wish to clarify that just because an invention involves only generic computer implement does not automatically exclude it from containing eligible subject matter. In Aristocrat, the delegate stated (my emphasis added): [30]
It is reasonable to view the substance of the invention as the presentation of game information in a way that allows the game and bet denomination to be selected in a single action. It is apparent that this would achieve a practical and useful result by simplifying the use of the gaming machine by the player. Looking at the relevant considerations, the invention appears to require only generic computer implementation. However, it does not appear that it was normal (at the priority date) to configure a gaming machine interface in this particular way. Here information is located in a particular position and functionality is generated by the use of this positional location to improve the gaming machine. The contribution is technical in nature, and achieves a practical and useful result. On balance, I am satisfied that the claimed invention is a manner of manufacture.
[30] Aristocrat Technologies Australia Pty Limited [2016] APO 49, [48].
The Applicant submits that ‘the invention is concerned with communicating to an operator in a training situation depth related information that corresponds to real world depth and in this way the operator is provided with training that is more relevant to a real-world wheel loader than wheel loader simulators known in the art.’ Noting that no objection has been raised in relation to novelty or inventive step, I can therefore state, with some confidence, that it is prima facie not normal, at the priority date, to configure the interface of a training simulation for a wheel loader in this particular way.[31]
[31] See Apple, Inc [2018] APO 54, [41]; Aristocrat Technologies Australia Pty Limited [2017] APO 1, [72]; Trading Technologies International, Inc [2017] APO 13, [39]. Section 18 sets out that for an invention to be a patentable invention, it must meet the requirement of section 18(1)(a) and section 18(1)(b).
Certainly in my view, the claimed invention contains indicators which provide a user with information indicative of depth that is a reflection of a real world context, so that the user is provided with an idea of how they might operate a wheel loader in the real world. The system also provides the user with feedback which indicates whether a bucket is correctly positioned. Adopting a similar approach to that taken in Aristocrat, the question to my mind is whether the claimed invention has been implemented in such a manner that it be said to be moderately advantageous such that it provides better training information or be considered a better learning tool. However, I do not believe that the specification extends this far. Moreover, I do not have access to any other material, such as evidence, upon which I might draw an inference that in performing the claimed invention, a user would be provided with training that is more efficient than conventionally done.
In Virginia-Carolina Chemical Corp's Application [1958] RPC 35, it was considered that the intellectual or visual content of a paper, film or other medium related to the fine and not the useful arts. The court in Pitman's Application [1969] RPC 646 took a similar approach, in observing that any matter having a purely intellectual, literary or artistic connotation was not patentable. While the claimed invention does require a degree of user interaction, in my view, the manner in which it is implemented appears analogous to that of a computer game.
In the absence of any additional information, I maintain that the claimed invention is directed towards no more than the presentation, and communication, of intellectual information. There is no evidence which suggests that better training is provided via an improved device.
Consequently, I am not satisfied that on balance, the present invention as claimed would qualify as being a manner of manufacture. This applies to all of the claims. Furthermore, there is nothing of substance in the specification as a whole which would, in my view, overcome this finding.
Support
The case law on support is well established and has been set out in a number of recent decisions.[32]
[32] See generally Evolva SA [2017] APO 57; Inter Aqua Advance A/S v Bent Urup Holding ApS [2018] APO 43; Stephen Anderson v K-fee System GmbH [2018] APO 31; Fisher & Paykel Healthcare Limited v ResMed Limited [2018] APO 67.
The provisions of section 40(3) were considered in detailed by a delegate of the Commissioner in CSR Building Products Limited v United States Gypsum Company [2015] APO 72 (CSR), who having reviewed several UK and EPO decisions and having regard to the guidance they provided, formulated a test in order to determine whether a claim is supported by the description:[33]
[33] CSR Building Products Limited v United States Gypsum Company [2015] APO 72, [115].
The support requirement was first considered by the Federal Court of Australia in Encompass where Perram J did not have regard to the approach formulated in CSR, but instead directed attention to the two elements said by the Explanatory Memorandum to be broadly encompassed by the term ‘support’. That is, there must be (a) a basis in the description for each claim and (b) the scope of the claims must not be broader than is justified by the extent of the description, drawings or contribution to the art.[34]
[34] Encompass, above n 28, [170] citing Lockwood Security Products Pty Limited v Doric Products Pty Limited [2004] HCA 58; 217 CLR 274.
However in light of my conclusion above in relation to manner of manufacture, it is not necessary for me to consider this ground.
Conclusion
I conclude that the invention, both as defined in the claims and as described in the specification, is not a manner of manufacture and there is nothing of substance in the specification as a whole which would, in my view, overcome this finding. Moreover, I do not have access to any other material, such as evidence, upon which to draw a reasonable inference that in performing the claimed invention, a user would be provided with training that is more efficient than conventionally done.
Moreover, the applicant has, on 30 April 2018, filed divisional application AU 2018202967 having an identical description to the present application, and requested full examination on 18 June 2018. There also exists another divisional, AU 2018201439, filed 28 February 2018, with full examination requested on 4 May 2018. In these circumstances, it seems appropriate to me to refuse the present application in the public interest to avoid any uncertainty.
Consequently, I refuse the application.
Isaac Tan
Delegate of the Commissioner of Patents