Nasdaq Technology AB
[2022] APO 55
•20 July 2022
IP AUSTRALIA
AUSTRALIAN PATENT OFFICE
Nasdaq Technology AB [2022] APO 55
Patent Application: 2018231698
Title:Order depth view visualization tool
Patent Applicant: Nasdaq Technology AB
Delegate:Anish Singh
Decision Date: 20 July 2022
Hearing Date: Written submissions filed on 8 November 2021
Catchwords: PATENTS – section 45 – examiner’s objection – order depth view visualization tool – manner of manufacture – invention in substance directed to a mere scheme – application refused
Representation: Patent attorney for the applicant: Griffith Hack
IP AUSTRALIA
AUSTRALIAN PATENT OFFICE
Patent Application: 2018231698
Title:Order depth view visualization tool
Patent Applicant: Nasdaq Technology AB
Date of Decision: 20 July 2022
DECISION
The claims, as proposed to be amended, do not define a manner of manufacture. The matter
described in the body of the specification provides no material that could result in valid amendments to the claims overcoming this finding.
I refuse the application.
REASONS FOR DECISION
Background
Patent application 2018231698 (“the application”) by Nasdaq Technology AB (“the applicant”) was filed on 07 March 2018 with an earliest priority date of 07 March 2017.
The application was subjected to two examination reports.
Examination report no. 1, issued on 28 May 2020, contains objections with respect to manner of manufacture as well as novelty and inventive step. A response to examination report no. 1 was submitted on 3 May 2021 with proposed amendments. In the first statement of proposed amendments to the specification of the application (“the specification”), the applicant proposed, under item 1, amendments to the description and claims.
Examination report no. 2, issued on 28 May 2021, contains a single objection with respect to manner of manufacture.
On 28 May 2021, the applicant requested to be heard.
The hearing was conducted by way of written submissions. On 8 November 2021, the applicant filed written submissions (“the applicant’s submissions”).
The final date for acceptance of the application was 28 May 2021, however, paragraph 13.4(1)(g) of the Patents Regulations 1991 (“the Regulations”) may be available to extend the time for gaining acceptance to three (3) months (or longer under subregulation 13.4(3)) from the date of the present decision.
THE SPECIFICATION
The proposed amendments
The amendments proposed on 3 May 2021 are directed to cancelling pages 1 to 41 as filed and substituting them with new pages 1 to 45. The allowability of the amendments appears to be considered by the Examiner at the Examination report no. 2 stage. There were no objections directed towards the allowability of the proposed amendments and I do not consider it necessary to discuss the allowability of the proposed amendments. The amendments appear allowable, and for the benefit of the applicant, I consider the specification as proposed to be amended.
The Body of the Specification
As a background to the alleged invention, the specification describes the use of computer systems operating according to pre-programmed trading algorithms to facilitate large numbers of trades of various instruments, such as stocks and other securities instruments. Computer systems and communication networks enable hundreds of thousands to millions of said trades. These trades may be completed in real time upon instructions to electronic exchanges for buying/selling orders or inputting bids.
It is noted that the use of such systems and technology may have improved reliability, efficiency, and availability of making said trades/orders. However, due to the sheer number of orders from various entities, identifying market manipulation has become a challenging issue to address. Paragraph [0004] of the description defines this issue as “spoofing and layering”:
“Spoofing and layering (‘spoofing’ for short) is a market manipulation technique in which a manipulator first enters one or more orders (bids or offers) on to one side of the electronic order book at prices and volumes that can have an effect on the market to move the prices in a direction desired by the manipulator, yet sufficiently distant from the market price point in order not to complete the trade.”
It is also noted that the electronic exchange systems may automatically detect behaviour patterns of orders transmitted by brokers to the electronic exchange systems. Consequently, alerts may be generated based on the outcome of the behaviours detected. To confirm spoofing and other abnormal patterns, analysts read over rows of order and trade data. The background to the alleged invention suggests that these techniques are time consuming, unreliable, and prone to errors.
The specification notes that it would be desirable to seek improvements in techniques, systems, and processes to address the shortcomings above.
At a broad level, the alleged invention relates to a computer system that generates a view to display order spread, trade price and order book depth in graphical forms. The specification provides an overview of the technology involved in the presently described alleged invention. More specifically, Fig. 1 illustrates an electronic exchange system environment which forms the technological basis of the alleged invention. Fig. 1 is reproduced here:
The electronic exchange system environment comprises multiple computer systems in communication with each other. The crux of the invention lies within Surveillance Processing System. Said Surveillance Processing System provides surveillance of order and/or trades to identify signs of market manipulations. This is where client order data, order book data and market data are received. In addition, an Analyst through the Analyst Computer System may also send a service request to the Surveillance Processing System over a network. Upon processing the data received by the Surveillance Processing System, module 138 may trigger alerts and generate data using graphs based on the order data, order book data and market trade data.
Figs. 2 – 4 further provide examples of the processes that may be performed by the Surveillance Processing System or Analyst Computer System. The most detailed exemplifications provided in the specification relate to correlating corresponding order book and/or market record to orders received from Client Ordering Computing System. These correlations may be performed over selected time intervals and upon a detection of a pattern a view may be generated, an alert may be generated, or other action may be taken. In the instance where an Analyst requests for an order depth view visualisation because of a spoofing alert, the system may generate a view as shown in Fig. 6, reproduced below. Several variations of the views are illustrated in Figs. 7 to 15, but the essence of the concept is captured in Fig. 6 and other variations do not add any further material aspects.
As an example, the view as illustrated in Fig. 6 is generated by an order depth visualisation tool and includes trade price, spread graph 602 and order depth graph 604. Different variables can be placed on the x and y axis, for example, x axis of 602 may be a time scale and y may be price or value. Other details such as bid values, cumulative bid volumes, volume of sell orders among others may also be shown using different colours or legends in the view. Filtering data based on traders, broker, for example, may also be provided.
It is also noted that an Analyst may utilise the order depth visualisation tool and concentrate on certain aspects of the view in respect to the orders to determine whether spoofing or any market manipulation has occurred.
The claims
The specification, as most recently proposed to be amended on 3 May 2021, ends with 22 claims. Claims 1, 18 and 21 are independent claims. The independent claims are as follows:
1. A computer system, comprising:
at least one memory;
at least one processor configured to:
receive broker order data including order records transmitted by an external computer to an electronic exchange to trade in a tradeable instrument, wherein the order records are anonymized and each associated with one or more order data fields;
receive executed trade information including trade records related to trades executed by the electronic exchange, wherein the trade records are each associated with one or more trade data fields;
correlate the executed trade information and broker order data by comparing the order records to the trade records and determining correlations between particular order records and trade records by identifying an equivalence between respective one or more trade data fields and one or more order data fields, and storing correlation information identifying correlated order records and trade records in the memory;
generate, based upon the determined correlation information, a view arranged to simultaneously display, as derived from the broker order data and executed trade information, order spread, trade price for executed trades, and order book depth over a time period, the display including an indication of identified correlations between instances of order spread, trade price for executed trades, and order book depth over a time period; and
output the generated view.
18. A method comprising:
receiving, using at least one processor of a computer, broker order data including order records transmitted by an external computer to an electronic exchange to trade in a tradeable instrument, wherein the order records are anonymized and each associated with one or more order data fields;
receiving executed trade information including trade records related to trades executed by the electronic exchange, wherein the trade records are each associated with one or more trade data fields;
correlating, using at least one processor, the executed trade information and broker order data by comparing the order records to the trade records and determining correlations between particular order records and trade records by identifying an equivalence between respective one or more trade data fields and one or more order data fields, and storing correlation information identifying correlated order records and trade records in the memory;
generating, based upon the determined correlation information and using at least one processor, a view arranged to simultaneously display, as derived from the broker order data and executed trade information, order spread, trade price for executed trades, and order book depth over a time period, the display including an indication of identified correlations between instances of order spread, trade price for executed trades, and order book depth over a time period; and
output the generated view to a display device.
21.A non-transitory tangible storage medium storing instructions which, when executed by a processor of a computer, causes the computer to perform operations comprising:
receiving broker order data including order records transmitted by an external computer to an electronic exchange to trade in a tradeable instrument, wherein the order records are anonymized and each associated with one or more order data fields;
receiving executed trade information including trade records related to trades executed by the electronic exchange, wherein the trade records are each associated with one or more trade data fields;
correlating the executed trade information and broker order data by comparing the order records to the trade records and determining correlations between particular order records and trade records by identifying an equivalence between respective one or more trade data fields and one or more order data fields, and storing correlation information identifying correlated order records and trade records in the memory;
generating, based upon the determined correlation information, a view arranged to simultaneously display, as derived from the broker order data and executed trade information, order spread, trade price for executed trades, and order book depth over a time period, the display including an indication of identified correlations between instances of order spread, trade price for executed trades, and order book depth over a time period;
and output the generated view.
APPLICABLE LAW
The Intellectual Property Laws Amendment (Raising the Bar) Act 2012 (“the Raising the Bar Act”) came into effect on 15 April 2013. As the application was filed after 15 April 2013, the application is subject to the amended provisions of the Patents Act (“the Act”) and the Regulations. Under subsection 49(1) of the Act the standard of proof that applies to the application is the balance of probabilities. This means, that I must accept the application if satisfied on the balance of probabilities that the application complies with the Act, otherwise, I can refuse the application if not so satisfied on the balance of probabilities.
Paragraph 18(1)(a) of the Act reads:
“(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;”
CASE LAW
There are a number of Court decisions that considered whether applications satisfied s18(1)(a), however for this particular case, the following Court decisions appear most relevant:
National Research Development Corporation v Commissioner of Patents, [1959] HCA 67, (1959) 102 CLR 252 (“NRDC”)
Research Affiliates LLC v Commissioner of Patents [2014] FCAFC 150 (“Research Affiliates”)
D’Arcy v Myriad Genetics Inc [2015] HCA 35 (“Myriad”)
Commissioner of Patents v RPL Central Pty Ltd [2015] FCAFC 177 (“RPL Central”)
Commissioner of Patents v Rokt Pte Ltd [2020] FCAFC 86 (“Rokt”)
Encompass Corporation Pty Ltd v InfoTrack Pty Ltd [2019] FCAFC 161 (“Encompass”)
In NRDC the High Court provided a statement of the law on manner of manufacture at p269:
"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?' "
The Court further in NRDC at p275 set out a test applicable 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."
The High Court though was not laying down a precise formulation that can be applied unthinkingly. In Myriad at [23]:
“This Court in NRDC did not prescribe a well-defined pathway for the development of the concept of ‘manner of manufacture’ in its application to unimagined technologies with unimagined characteristics and implications. Rather, it authorised a case-by-case methodology.”
The Court in Myriad at [144] provided that case-by-case approach must have regard to substance of the claimed invention, not simply the form:
“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.”
The Court in Research Affiliates also stressed on the importance of understanding the invention as a matter of substance and not as a matter of form at [106]:
“The determination whether the claimed invention is truly ‘an artificially created state of affairs’ in satisfaction of NRDC is made not by some mechanistic application of the criterion of artificiality or physical effect, but by an understanding of the claimed invention itself. The invention is to be understood as a matter of substance and not merely as a matter of form.”
The Court in RPL Central having considered Research Affiliates and Myriad, further confirmed the approach of understanding the invention as a matter of substance and provided guidance in determining manner of manufacture for inventions implemented using computers at [96] – [98], [104] and [107]:
“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.” (at [96])
“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 Wi-Fi, 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?” (at [97])
“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.” (at [98])
“It is stated in the specification, and was accepted by the primary Judge, that the method could not be carried out without the use of a computer. This alone cannot render the claimed invention patentable if it simply involves the speed of processing and the creation of information for which computers are routinely used. In those circumstances, the claimed invention is still to the business method itself. A computer-implemented business method can be patentable where the invention lies in the way in which the method is carried out in the computer. This necessitates some ingenuity in the way in which the computer is utilised (Research Affiliates).” (at [104])
“Simply putting a business method or scheme into a computer is not patentable unless there is an invention in the way in which the computer carries out the scheme or method. Is the fact that the scheme cannot practically be implemented without a computer, that is, that the computer is integral to the working of the scheme, sufficient to make it patentable? The answer is not straightforward because this is not a case where the computer simply processes the information entered by the user, for example by using an algorithm, or retrieves information from the Internet in response to a user’s question.” (at [107])
The principles from RPL Central and Research Affiliates were summarised by the Delegate in Aristocrat Technologies Australia Pty Limited [2016] APO 49 (Aristocrat ’16) at [35]:
“I conclude that it is relevant to consider a range of matters. Without seeking to be exhaustive, these include:
·there must be more than an abstract idea, mere scheme or mere intellectual information;
·is the contribution of the claimed invention technical in nature;
·does the invention solve a technical problem within the computer or outside the computer;
·does the invention result in improvement in the functioning of the computer, irrespective of the data being processed;
·does the application of the method produce a practical and useful result;
·can it be broadly described as an improvement in computer technology;
·does the method merely require generic computer implementation;
·is the computer merely an intermediary or tool for performing the method while adding nothing of substance to the idea;
·is there ingenuity in the way in which the computer is utilised;
·does the invention involve steps that are foreign to the normal use of computers; and
·does the invention lie in the generation, presentation or arrangement of intellectual information.”
The Full Federal Court in Rokt confirmed the principles. Similarly, an expanded bench of the same Court confirmed the principles in Encompass.
THE EXAMINER’S OBJECTION
The only outstanding objection is that the claims are not for a manner of manufacture. This objection from examination report no. 2 is reproduced here:
“I am maintaining objection 1 from the previous report. Claims 1 – 22 still 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), 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.
Key factors to considering patentable subject matter identified by the Full Court in Commissioner of Patents v RPL Central Pty Ltd [2015] FCAFC 177 at [099] include whether the contribution of the invention ‘solves a technical problem within the computer or outside the computer or whether it results in an improvement in the functioning of the computer, irrespective of the data being processed.’
The present invention solves the problem finding data abnormalities while processing high volumes of transactions in a trade exchange system. This is not a problem of technical nature. The alleged invention does not solve a technical problem nor involve ingenuity in the computer implementation of the invention. Rather the claims define a method of analysing and processing trading data from brokers and traders for the purpose of preventing market manipulation (which is implemented by using a standard computer) [para 0004, para 0005]. The technical aspects that are being defined by the claims are generic use of a standard operation of computers and there is nothing foreign than the normal use of computers. This is nothing more than standard data processing. This is not solving a technical problem. It is merely a business-administration scheme that processes trading transactions electronically (for enabling large number of trades electronically) [para 0003]. This is merely an automation of a manual process for finding abnormality is trade data (determining market manipulation).
This is not a technical solution to a technical problem. Hence, as per the description [para 0005, para 0006], the process where an analyst looking over rows upon rows of order data and trade data to spot unusual or problematic patterns and to confirm spoofing (or any market manipulation) and other like abnormal data patterns is not a technical problem. Using a computer to execute pattern recognition processes would be considered as mere automation operation. This is not a technical improvement in the art. By their very nature, and therefore generic operation, computers are designed for and well known to improve efficiency through automation. The substance remains as a scheme.
Based on the amended claims, the features defined only imply well-known uses of a standard computer to perform standard data processing operations. For example, the feature of comparing the order records to the trade records and determining correlations between particular order records and trade records by identifying an equivalence between respective one or more trade data fields and one or more order data fields and storing correlation information identifying correlated order records and trade records in the memory only imply standard use of a computer for data processing purposes. Computers are known to perform data processing operations such as receiving, analysing, comparing, and correlating data. Hence the amended claims do not indicate anything more than a standard computer executing a generic software to find the differences between ‘broker order data’ and ‘executed trade information’. This is merely standard data processing. Therefore, the process of detecting abnormalities caused by incoming transaction requests in a trading system is merely a business solution rather than a technical innovation. It is merely a generic implementation of a computer. Additionally, the process of anonymising broker order data (or records) is not considered a technical improvement. It only implies standard or generic data anonymity operations in a trading scenario and is neither a technical contribution nor improvement in the art electronic exchanges.
The present invention solves a problem of discovering abnormal data pattern in electronic trading transactions. Based on the specification as a whole, the computer systems are merely being used to implement data analysis for the purpose of automating the monitoring of trading transactions and data. Data is analysed to find abnormal patterns or to determine market manipulation [para 0004]. Thus, the problem is in the art of trading analytics. It is not technical in nature. Furthermore, there is no technical teaching within the specification that appears to go beyond mere automation of the trading-driven data analysis, monitoring and correlation operations. The claims do not involve any invention or ingenuity in any manner of implementation by a computer to operate the method, rather the computer is performing generic functions in analysing trading data and electronic exchanges. The computer is merely an intermediary to perform the operations defined in the claims. To simply 'put' an automated method 'into' a computer to implement the data analysis method using the computer for its well-known and understood functions does not make the business scheme a patentable invention. This is not an improvement in the computer technology.
Finally, the specification as filed does not provide specific technical details to indicate how the combination of the well-known functions and processes of a computer result in the claimed invention contributing to a technical effect or material advantage in the computer. The combination of features is merely linked to implementing business-administrative rules determining market manipulation using a general-purpose computer. The problem the claimed invention is directed to is determining if there is any ‘spoofing’ or ‘layering’. This is not a technical or technological problem but is rather in the realm of market trading or electronic trade exchanges and therefore is an abstract idea. The claimed invention, in substance, is not a manner of manufacture.”
THE APPLICANT’S SUBMISSIONS
In written submissions, the applicant broadly discussed the alleged invention followed by applicable case law and its application to the claimed invention.
The applicant submitted that the alleged invention endeavours to address the following problems, which the applicant characterises as technical, and I identify with lettering for convenience:
(a) “The anonymity of the order records poses a clear technical problem: how to correlate data from two separate sources where at least one of the sources is anonymised (i.e. there is no specific identifying data that can be used for correlation). The invention, therefore, is not provided with non-anonymous order records at any stage.”
(b) “There is a fundamental difference between ‘broker order data’ (1.2) and ‘executed trade information’ (1.3), as the different nature and source of said data represents a
technical problem which exists when attempting to identify spoofing events.”
(c) “It is also apparent that a first fundamental difference in the two data sets is the quantity of data—there are many more orders transmitted than there are trades made…” and “Additionally, there are a much larger number of order records than trade records, which also creates a barrier to correlation.”
The applicant further submitted that the display of the alleged invention is not a mere display, rather is a display that is (d) “is explicitly tied to the earlier processing to identify correlations in the disparate data types of broker order data and executed trade information. That is, the display, and therefore the analysis tool, is only possible because of the earlier processing”.
The applicant referenced relevant parts of RPL Central, Rokt, Encompass and Research Affiliates, in particular, Rokt at [1], RPL Central at [96] and Rokt at [114], to emphasise that a computer implemented invention is not inherently unpatentable. The applicant further paraphrased at paragraph [24] of the submissions:
“To paraphrase, we submit that the Full Court is stating that the claimed invention should not simply define what a computer should do but should define, as essential steps, programming which enables the computer to perform the invention. That is, the claims should not only define what the computer program does, but also, how it does it. There is a brief allusion in Rokt (see [113]) about the difference between copyright protection for the particular code of software and the patentable functional aspects, which precedes paragraph 114 cited above. We submit that the Full Court is not stating that the claims must be to specific programming instructions at the level of computer code; instead, we submit, the claims should include, as essential integers, sufficient definition of algorithmic steps to define how the computer technology is integral to the invention rather than a mere vehicle to perform the invention.”
The applicant further explained their understanding as to why the Courts found each one of RPL Central, Rokt, Encompass to not meet the requirements of patentable subject matter and how the computer was not integral to each of the alleged inventions, rather, a mere vehicle to perform the invention.
The applicant stated, with reference to Rokt and RPL Central, that the invention is “more than an abstract idea” and where “invention lies in the way in which the method is carried out in the computer” and thus distinguished from RPL Central, Rokt and Encompass. The applicant submits that the present invention provides an improved tool to identify abnormalities:
“The present invention provides an improved tool to identify abnormalities (such as spoofing) in trading data; specifically, through an analysis of broker order data and executed trade information. The invention of Claim 1 includes a display such that an analyst is more easily able to identify abnormal patterns. The reason for the improved ease relates explicitly and integrally to the correlation step relating to the broker order data and executed trade information.”
The applicant further provided explanation of their understanding as to what the Full Court may mean by “the computer being integral to the invention” and to a greater extent relied on the CCOM Pty Ltd v Jiejing Pty Ltd [1994] FCA 1168 (‘CCOM’) decision:
“In Research Affiliates, the Full Court says the following (at [110] [sic]), our emphasis in bold, italics in original):
‘From the evidence, it cannot be said, as it was in IBM 2 at 225-6, that the claimed method and the use of the algorithms involved steps which are foreign to the normal use of computers. In CCOM, the Full Court (at 291) warned against bringing into the determination of “manner of manufacture” considerations of whether what was claimed involved anything new and unconventional in computer use and repeated the test in NRDC (at 276-277), that in so far as “manufacture” suggests a “vendible product”, this is to be understood as covering every end produced or artificially created state of affairs which is of utility in practical affairs and whose significance thus is economic… In CCOM, the field of economic endeavour was the use of word processing to assemble text in Chinese language characters. The end result achieved was the retrieval of graphic representations of desired characters, for assembly of text. The mode or manner of obtaining this was the storage of data as to Chinese characters analysed by stroke-type categories.’”
The applicant also provided statements relating to the approach of considering the claimed features as a whole and that it is erroneous to look at individual features of a claim and determine whether each of the features individually represent a generic function of a computer.
CONSIDERATION
Claim 1 is directed to a computer system, claim 18 is directed to a method and claim 21 is directed to a non-transitory tangible storage medium storing instructions which, when executed by a processor of a computer, causes the computer to perform operations. Except for these differences, the features of all three independent claims are corresponding and essentially identical. The considerations given to any one of these claims are also intended for corresponding features of other independent claims.
Does the alleged invention solve a technical problem within the computer or outside the computer?
The applicant submitted that correlating data from two sources where at least one is anonymised is a technical problem (a). It is apparent from the specification that the architecture involves multiple computers (in the form of Electronic Exchange Computer System, Client Ordering Computer System and Analyst Computer System) sending and receiving information to and from the Surveillance Processing System (another computing system). At the Surveillance Processing System anonymised order records each associated with one or more data fields are received. The Surveillance Processing System also receives trade records executed by the Electronic Exchange Computer System. Said received executed trade records are also associated with one or more trade data fields. The specification, and in particular paragraph [0048], clearly describes the fact that correlating these different sets of data is simply matching one or more fields of the order data to order book data and/or market data (which also includes executed trade records). The specification does not, in further detail, discuss why or how matching fields from different data sets, is a problem that can be considered a technical problem. The present invention in this aspect relates to the mere use of standard computers to perform such correlations without any specifics on “how” a technical problem is overcome or a computer function is improved. Simply put, matching data using fields among different data sets is a standard function done by standard computers and does not amount to a technical problem being solved. Paragraph [0048] further discloses another method of correlation by calculating a signature based on multiple values (order, price, volume for each order) and then matching the signature to a signature for records from the order book data. The specification does not, in further detail, discuss how a signature based on multiple fields is created and compared with another signature and what technical problem is solved. The present invention in this aspect relates to the mere use of standard computers to create and compare signatures.
Another alleged technical problem (b) being solved by the alleged invention is using data of different nature and source, i.e. using “broker order data” and “executed trade information”. As mentioned earlier, multiple computers provide data to the Surveillance Processing System and each of the data sets have associated data fields. There is similarly nothing specifically technical about correlating different data sets with associated data fields and therefore I have difficulty accepting that this represents a technical problem. It is merely a conventional computing operation to analyse data from multiple sources.
Alleged problem (c) relates to the fundamental difference in quantity or volume of data between the two sets. The first set of data representing the orders and being much larger than the second set of data representing executed trade records. The specification does not expand on what the specific technical problem may be. I do not see correlating two sets of data with differing levels of volume or quantity as a technical problem. If anything, this is a mathematically logistical problem.
Regarding (d) in paragraph [33] above, the applicant submits that the display is useful for identifying abnormalities and is explicitly tied to earlier processing. While improving graphical user interfaces/display may be a technical problem to solve, I am not satisfied that any technical problem relating to interfaces or displays is solved in the present case. The specification also does not present any technical barrier in which specific data presented need to first address a technical problem within the computer or outside the computer. From reading the specification, the display is presenting data that is processed at the Surveillance Processing System. The display is a mere tool with information from different data sets that are presented to an analyst for the identification of abnormalities in the market. I have no difficulty accepting that the display provides a view of computed data tied to the earlier processing, but this relation is only to the extent of presenting the information that has been processed by the Surveillance Processing System.
I do not see any technical problem outside of computer technology that is being solved in this instance. I also do not see any technical problems being solved in computing technology. The problem I see being solved here appears to be the correlation and analysis of two data sets (being the broker order data and executed trade information) of different quantities to help identify market abnormalities. This problem at the level of abstraction of the specification is within the realm of a business or administrative problem rather than a technical problem.
Based on the above considerations, I consider that the alleged invention does not solve a technical problem.
Is the computer integral to the invention or a mere tool in which a scheme is performed?
The applicant submitted that the current invention is more than an abstract idea. In the context of the applicant’s submission comparing the current invention to that in CCOM, they submit that the current invention “creates, in effect, a new data structure entirely equivalent to the database storing Chinese characters in a new way in CCOM.” The applicant further submitted that “this data structure enables the display of ‘broker order data and executed trade information, order spread trade price for executed trades, and order book depth over a time period’ (1.5.1).”
The alleged invention involves computers performing multiple functions/steps. These are:
a) Receiving anonymized order records (broker order data) to trade
b) Receiving executed trade information including trade records
c) Comparing order records and trade records
d) Determining correlations between order records and trade records by identifying equivalence between trade data fields and order data fields
e) Storing correlation information
f) Generating based on the determined correlation information, a view including order spread, trade price and order depth over a period of time.
g) Including in the display identified corelations.
I refer to Rokt at [115]:
“In the present case, the claim amounts to an instruction to carry out the marketing scheme. The level of abstraction at which it is expressed demonstrates that it does no more than provide a list of steps to be implemented using computer technology for its well-known and understood functions. Nothing in the specification suggests otherwise. This may be seen from the instructions explained as steps S1a to S10a in the specification (see [26] above). They comprise a list of general instructions to write software. Even if the scheme is new and ingenious, it is not made patentable merely because it can or must be implemented using computer technology. Rather, the language of the specification and the broad statements of steps required to be taken in claim 1 do no more than locate the scheme in computer technology, using its well-known and understood functions.”
Similarly, I consider that similar characterisation of the claimed invention is also applicable to the present case. I cannot see any improvement to how a computer operates as “an improved tool”. Data is received from different sources (Client Ordering Computer System and Electronic Exchange Computer System), processed (comparing data fields of the data and determining correlations), and a view is generated identifying the correlations among sets of data. The level of detail provided in the specification simply lies in data processing and generating outputs which may be beneficial to an analyst. The computing devices utilised also only perform functions that are considered generic or standard. The steps as listed in paragraph [47] above may be ingenious, but such instructions cannot be made patentable because they use computer technology for their implementation. The steps only amount to a scheme which are performed by standard computers to display correlations between different data sets with different number of fields.
In relation to CCOM, Cooper J found that:
“The NRDC Case (102 CLR at 275-277) requires a mode or manner of achieving an end result which is an artificially created state of affairs of utility in the field of economic endeavour. In the present case, a relevant field of economic endeavour is the use of word processing to assemble text in Chinese language characters. The end result achieved is the retrieval of graphic representations of desired characters, for assembly of text. The mode or manner of obtaining this, which provides particular utility in achieving the end result, is the storage of data as to Chinese characters analysed by stroke-type categories, for search including ‘flagging’ (and ‘unflagging’) and selection by reference thereto.”
In CCOM the end result may be said to lie in an improved data structure to provide an improved keyboard function, or an improved user interface for an improved way of inputting Chinese characters. I do not see the current invention being analogous to CCOM. The present invention utilises computer functions, including the processor and memory to merely process, store, and output data. The specification fails to describe any specific improved data structure or functional operation that may lead to an improved view based on specific inputs. Rather, the specification broadly describes comparing of data fields between two sets of data (which may be ClientID, instrument ID, quantity value, price etc.) or matching signatures based on the values of the order. Any specificity of the comparing or correlation of data in the specification only amounts to standard processing functions of a computer.
Does the invention use generic or standard computer technology?
Following the discussion above and in view of the specification, the claimed invention merely utilises several standard computers that may be connected to each other and a display that is configured to present information. The claimed invention does not demonstrate any ingenuity in the way in which the computer technology is utilised. The specification fails to provide information on how computing technology functions in an improved manner and I cannot see any reasons for this being the case.
Does the alleged invention produce a practical and useful result?
The alleged invention envisages the generation of a view for identifying abnormalities or market manipulation. This may be practical and useful to the extent it may provide benefit to an analyst viewing the information on the display. However, at the current level of abstraction, as a matter of substance, the ingenuity lies in the scheme and any usefulness comes in effect by implementing the scheme on standard computing systems. Consequently, as a matter of substance, the alleged invention does not provide material or useful result in the manner intended by Research Affiliates at [114]:
“The invention set out in the specification is directed to the index itself. The method of the invention is not one that has any artificial or patentable effect other than the implementation of a scheme, which happens to use a computer to effect that implementation. There is no technical contribution to the invention or artificial effect of the invention by reason of the intervention of the inventors. To take the words of NRDC at 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 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 276).”
Dependent claims
I have considered each of the dependent claims and do not see any material within the claims that is directed to patentable subject matter.
Dependent claims 2 – 17, 19, 20 and 22 are directed to additional features comprising multiple graphs representing different information. The information represented by the graphs may include order spread, trade price for executed trades, order book depth, trade volume, cumulative volume of orders etc. The graphs comprise x and y axis with different parameters on each axis, for example: time on x-axis and price on y axis. Some additional features within these claims also include representing certain information using varying colour, intensity of colour or pattern, and representing certain information of selected entities. Furthermore, some of the additional features within the dependent claims include selecting and/or changing entities/content to display based on alert messages or detected patterns. The alert messages may be generated based on analysing correlated data to detect predetermined patterns. The predetermined pattens may be defined using different parameters. Other additional features within the dependent claims include identifying equivalence between different data fields comprising calculating signatures for order and trade records.
These dependent claims define analysing different sets of data to identify correlations, patterns and/or abnormalities in trades and displaying selected information represented by different parameters on graphs with x and y axis. The claims merely define additional features of the scheme. I also do not see any technical problems being solved by any of the additional features of the claimed invention. The involvement of the computer is only to a degree of a mere tool for the computation of the data for display.
Invention as a whole
The applicant submitted that “the claim must be looked at as a whole–as an interworking of elements to produce a result–to determine whether the requisite technical or material effect exists”. I have discussed the computing devices and their functions utilised to perform the claimed invention. From the discussion, it is apparent that there is nothing in substance that provides a specific combination of the interworking of the components of the invention or arrangements of the invention as a whole that goes beyond the normal use of computing technology. The present invention only utilises standard computing devices interworking in a standard manner to process and display data of business nature.
The specification and the alleged invention as a whole appear to solve a business or administrative problem. I have noted above that the technology utilised above functions in a standard manner and steps of the processing from receiving data, correlating data, sending data, and displaying results only amount to the normal functions of standard computers. Although the alleged invention utilises technological entities, these entities are used for computation of data to display relevant information on a display to relevant parties. The computation of data is not considered to be anything more than standard computation of data using standard computers. I consider the substance of the alleged invention does not lie in technical elements of a computer but in a mere scheme for analysing data related to trades to identify market manipulation in graphical forms for an analyst. The ingenuity of the alleged invention lies in the scheme and the computer is a mere tool which implements the scheme in a standard manner.
Having identified the substance of the alleged invention, as a matter of substance, the claimed invention cannot be characterised as a patentable invention. There is no material in the specification that provides disclosure that could be characterised as technical. The invention described in the whole specification is consistent with my characterisation of the invention above.
CONCLUSION
I conclude that the claimed invention, as a matter of substance, is not a manner of manufacture. I have found that none of the claims, independent or dependent, define an invention that is a manner of manufacture.
I acknowledge the applicant’s request for continued examination at [51] of their written submissions. The objection with respect to manner of manufacture was raised and maintained in all examination reports. The Applicant then requested to be heard and provided their written submissions. It is not unreasonable to assume that the Applicant already had the opportunity to present their best case before the Commissioner. I am of the view that there is no material in the specification that could result in the applicant overcoming my finding and further examination will serve no useful purpose. As a result, I refuse the application.
Anish Singh
Delegate of the Commissioner of Patents
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