Safran Electronics & Defense

[2019] APO 17

IP AUSTRALIA

AUSTRALIAN PATENT OFFICE

Safran Electronics & Defense [2019] APO 17

Patent Application:                2016271694

Title:Aiming system comprising a screen covered with a tactile interface and corresponding aiming method

Patent Applicant:                   Safran Electronics & Defense

Delegate:  Isaac Tan

Decision Date:  11 April 2019

Hearing Date:  15 March 2019 by written submissions.

Catchwords:  PATENTS – section 45 – examiner objection hearing – computer implemented invention – touch interface – aiming system comprising a control zone – virtual joystick – novelty and inventive step under section 18(1)(b) – combination of prior art considered – claims are novel and inventive – consideration of what constitutes common general knowledge – no motivation to combine disclosure of prior art – application directed to proceed to acceptance

Representation:  Andrew Cale, Patent Attorney of Spruson & Ferguson

Edward Quinn, Patent Attorney of Spruson & Ferguson

IP AUSTRALIA

AUSTRALIAN PATENT OFFICE

Patent Application:                2016271694

Title:Aiming system comprising a screen covered with a tactile interface and corresponding aiming method

Patent Applicant:                   Safran Electronics & Defense

Date of Decision:                   11 April 2019

DECISION

All of the claims are novel and have an inventive step.

I direct that the application be accepted.

REASONS FOR DECISION

Background

1. Safran Electronics & Defense (Applicant) filed Australian patent application 2016271694 (application) as international application PCT/EP2016/062308 filed under the Patent Cooperation Treaty (PCT) with an international filing date of 31 May 2016 and claiming a priority date of 1 June 2015.

2. On 27 November 2017, Fisher Adams Kelly Callinans, which was the firm representing the Applicant at the time, requested expedited examination under the Patent Prosecution Highway (PPH), based on claims considered allowable by the European Patent Office (EPO) in the International Preliminary Report on Patentability Chapter 1 (IPRP1).

3. The application has been subjected to four (4) examination reports respectively dated 19 January 2018, 10 August 2018, 30 October 2018, and 14 January 2019. In response to the examination report of 30 October 2018, the Applicant proposed amendments on 8 January 2019 which requested that all the claims presently on file be deleted and replaced with a new set of 8 claims. On 18 January 2019, one day before the final date of acceptance, the Applicant requested to be heard.

4. In response to the request to be heard, the Applicant was invited to provide written submissions. The Applicant’s written submissions was filed on 15 March 2019.

   Applicable Law

5. The application was filed after 15 April 2013 and is governed by the Patents Act 1990 (the Act) and Patents Regulations 1991 (the Regulations) as amended by the Intellectual Property Laws Amendment (Raising the Bar) Act 2012 (Raising the Bar). Amendments to sections 7, 40 and 49 of the Act apply to the present case as a consequence of Schedule 1, items 55(1)(d) and 55(4)(a), and Schedule 6, item 133(7)(d) of the Raising the Bar Act.

6. Thus the standard of proof that applies in the present case is the balance of probabilities. I must accept the application if satisfied on the balance of probabilities that the application complies with the Act. If I am not so satisfied, then I can refuse the application.

   The examiner objections

7. According to Examination Report number 4, which was issued on 14 January 2019 (examination report), the examiner raised an objection under the heading ‘Novelty and inventive step’. The objection is primarily based on a single prior art document:

   ·United States Patent Application 2012/0090216 A1 entitled ‘Electronic firearm sight and method for adjusting the reticle thereof’, in the name of Danyun Li, with a publication date of 19 April 2012 (Li).

8. The examiner also raised an additional two (2) prior art documents, US 2011/0285636 A1 (Howard) and US 2013/0055119 A1 (Luong), to establish common general knowledge. In essence, the examination report states that at least the independent claim lacks an inventive step in light of Li. Moreover, the examiner considered that the integers incorporated by the dependent claims are well known, and thus lacks an inventive step in light of Li.

   Specification

9. The specification states that the present invention relates, generally, to the field of aiming and pointing a device at a target displayed on a screen.[1] Specifically, the object of the present invention ‘is to propose an aiming system that enables an operator to point more easily at a target visible on a screen of said aiming system’.[2] As background, the specification provides an overview of the issues pertaining to conventional aiming systems:[3]

   In the naval field, it is known for ships to be fitted with an aiming system for pointing a weapon at a target. Typically, an aiming system comprises a display control unit that is connected to a screen in order to display images from a camera on board the ship, and that is arranged to inlay an aiming frame in said images. In service, the operator moves the aiming frame by means of a control of the joystick type.

   In order to improve ergonomics and limit the number of different interfaces, proposals have been made to cover the surface of the screen in a touch interface. The control unit is arranged to detect a zone of the screen against which the operator presses a finger in order to center the aiming frame on that zone. The operator can thus move the aiming frame in order to put a frame around or point at a target visible in the images in order to lock onto said target.

   Nevertheless, since the target may be of small dimensions, the target can be masked by the operator’s finger. It has therefore been found difficult for the operator to point correctly at a target, in particular when a plurality of potential targets are to be found in the same zone of the screen, or when the target is moving on the screen.

   [1] Specification as filed, Page 1 Lines 3 – 9.

   [2] Ibid Page 2 Lines 3 – 7.

   [3] Ibid Page 1 Lines 12 – 35.

10. To address these issues, and achieve the object of the present invention, the specification describes an aiming system which comprises a display control unit and a screen, whereby the screen is covered at least in part by a touch interface connected to the display control unit.[4] The display unit is said to be arranged to inlay a control zone in the images displayed on the screen including the area where the screen has the touch interface, and to move the aiming frame on the screen as a function of contacts exerted on the touch interface in the control zone. By having the control zone distinct from the aiming frame, the specification states that it was found to be easier for an operator to view the aiming frame in spite of the aiming frame moving on the screen. Moreover, as the operation does not move the aiming frame directly with his or her fingers, both the aiming frame and the target remains more visible and it is therefore simpler for an operator to follow a moving target in the images, or to point at one target situated among other potential targets.[5]

    [4] Ibid Page 2 Lines 10 – 17.

    [5] Ibid Page 2 Lines 10 – 34.

11. The specification contains a sole figure and explanation, both of which have been reproduced below:

    With reference to the sole figure, the aiming system of the invention, given overall reference 1, is carried in this example by a navel [sic] vessel.

    The aiming system 1 comprises a display control unit 2 with a screen 3 connected to the display control unit 2 in order to display images from a camera P that is also carried by the vessel for the purpose of acquiring images from outside the vessel, and that is likewise connected to the display control unit 2. In this example, the screen 3 has a surface that is completely covered in a touch interface connected to the display control unit 2.

    The touch interface is itself known and, by way of example, may comprise a mesh of pressure sensors or indeed a mesh of resistive, capacitive, inductive, or other sensors.

    The display control unit 2 is arranged to inlay an aiming frame 4 in the images displayed on the screen 3. In the invention, the display control unit 2 is also configured to inlay a control zone 5 in the images displayed on the screen 3 and to allow the aiming frame 4 to be moved on the screen 3 as a function of contact exerted on the touch interface in the control zone 5 by an operator.

    In this example, the display control unit 2 is also arranged to trigger locking onto a target C visible on the screen 3 when the aiming frame 4 designates said target C and two distinct contacts are inserted simultaneously on the control zone 5, as described below.

    In particular manner, the display control unit 2 is arranged to inlay the aiming frame 4 on the screen 3 only while contact is being exerted on the control zone 5. This makes it possible to limit the number of inlays on the screen 3, thereby making it easier to read the images displayed by the screen 3. As soon as contact ceases to be exerted in the control zone 5, the aiming frame 4 disappears from the screen.

12. The control zone 5 includes a first portion 6, a second portion 7, a horizontal line 8 and a vertical line 9. When contact is exerted by the user on the first portion 6 or the second portion 7, the aiming frame 4 is moved on the screen, respectively, at a first and second speed range.[6] By way of example, the specification states that preferably, the first speed range is faster than the second speed range, to allow an operator to move the aiming frame 4 quickly with the finger pressed in the first portion 6, and then move the aiming frame 4 more slowly with a finger pressed in the second portion 7. This enables the operator to vary the speed with which the aiming frame is to be moved in a simpler and ergonomic manner.[7]

    [6] Ibid Page 4 Line 31 – Page 5 Line 5.

    [7] Ibid Page 5 Lines 6 – 19.

    The claims

13. The specification as filed ends with 8 claims. On 8 January 2019, the Applicant proposed amendments which requested that all of the claims presently on file be deleted, and replaced with a new set of 8 claims, and are provided as follows:

    Claim 1

    An aiming system comprising a display control unit and a screen connected to the display control unit in order to display images from a camera, the screen having a surface that is covered at least in part by a touch interface connected to the display control unit, and the display control unit being arranged to inlay an aiming frame in the images displayed on the screen, wherein the display control unit is arranged to:

    - inlay a control zone in the images displayed on the screen and where the screen has the touch interface, the control zone being distinct from the aiming frame; and
    - move the aiming frame at a speed on the screen as a function of contacts exerted on the touch interface in the control zone.

    Claim 2

    A system according to claim 1, wherein the display control unit is arranged to represent the control zone on the screen as a geometrical figure that is subdivided into portions by a horizontal line and by a vertical line.

    Claim 3

    A system according to claim 1, wherein the control zone is configured so as to include a first portion and a second portion, the display control unit being arranged to move the aiming frame on the screen in a first speed range as a function of contact being exerted in the first portion, and to move the aiming frame on the screen in a second speed range as a function of contact being exerted in the second portion.

    Claim 4

    A system according to claim 3, wherein the display control unit is arranged in such a manner that the first portion forms on the screen a circular portion and in such a manner that the second portion forms on the screen a peripheral circular portion concentric with the first.

    Claim 5

    A system according to claim 1, wherein the display control unit is arranged to inlay the aiming frame and/or the control zone on the screen only while contact is being exerted on the touch interface.

    Claim 6

    A system according to claim 1, wherein the display control unit is arranged to trigger locking onto a target visible on the screen when the aiming frame designates said target and when a locking command is transmitted to the control unit.

    Claim 7

    A system according to claim 6, wherein the locking command comprises two distinct contacts being exerted simultaneously on the control zone.

    Claim 8
    
    

    An aiming method performed using an aiming system having a screen for displaying images from a camera, the screen having a surface that is covered at least in part by a touch interface, the method including the step of inlaying an aiming frame in the images displayed on the screen, and wherein the method further comprises the steps of:

    -     inlaying a control zone in the images displayed on the screen and where the screen has the touch interface, the control zone being distinct from the aiming frame; and

    -     moving the aiming frame at a speed on the screen as a function of contact exerted on the touch interface in the control zone.

    Novelty

14. Although the examiner had conceded that the issue of novelty is not an outstanding objection, and therefore does not apply to the present matter, it is my view that a determination of inventive step will become clearer once novelty has been properly assessed. Thus, for simplicity and completeness, I will proceed to consider this ground.

15. It is well established that the test for novelty is as described by Besanko J in Aspirating IP Limited v Vision Systems Limited:[8]

    The test for anticipation or want of novelty is the same as that for infringement and generally it is appropriate to ask whether the alleged anticipation would, if the patent were valid, constitute an infringement. That was the test enunciated in Harwood v Great Northern Railway Co (1865) 11 HLC 654; 11 ER 1488 and it has been applied ever since (see, for example, Meyers Taylor Pty Ltd v Vicarr Industries Ltd (1977) 137 CLR 228 at 235 per Aickin J). To satisfy the test, the prior document or act must involve or incorporate all of the integers of the claim under consideration.

    [8] Aspirating IP Limited v Vision Systems Limited [2010] FCA 1061 at [165]; See also Bristol-Myers Squibb Co. v FH Faulding & Co. (2000) 97 FCR 524 at [66]; Pfizer Overseas Pharmaceuticals v Eli Lilly and Company (2005) 68 IPR 1 at [313].

16. However, the reverse infringement test is not applied by simply asking whether something within the prior art document would, if carried out after the grant of the patent, infringe the invention as claimed. Rather, ‘[i]t must also be shown that the Specification contains clear and unmistakable directions so to use it.’[9] As stated by the Court of Appeal in The General Tire & Rubber Company v The Firestone Tyre and Rubber Company Limited:[10]

    A signpost, however clear, upon the road to the patentee’s invention will not suffice. The prior inventor must be clearly shown to have planted his flag at the precise destination before the patentee.

    [9] Flour Oxidizing Company Ltd v Carr & Co Ltd [1908] 25 RPC 428 at 457; See also Canadian General Electric Co Ltd v Fada Radio Ltd (1930) 47 RPC 69.

    [10] The General Tire & Rubber Company v The Firestone Tyre and Rubber Company Limited [1972] RPC 457 at [486]. See also ICI Chemicals & Polymers Ltd v Lubrizol Corp Inc (2000) 106 FCR 214 at [51].

17. The ‘stringency’ upon which a prior art document is to be assessed in relation to novelty is set out in Samsung Electronics Co. Limited v Apple Inc. where the Full Court stated:[11]

    It is trite law that, if the alleged paper anticipation is to deprive an invention of novelty, it must clearly disclose each and every essential feature of that invention, as claimed. This principle has its genesis in Lord Westbury’s seminal statement in Hill v Evans (1862) 4 De GF & J 288; 1A IPR 1 at 7 that “the information as to the alleged invention given by the prior publication must, for the purposes of practical utility, be equal to that given by the subsequent patent”, a statement which Lord Reid described in C. Van der Lely N.V. v Bamfords Limited [1963] RPC 61 at 72 as “universally accepted”. The stringency with which the prior disclosure is to be assessed in order to be novelty-destroying has been discussed in a number of decisions in this Court, most notably in Nicaro Holdings Pty Ltd v Martin Engineering Co (1990) 91 ALR 513 and Ramset Fasteners (Aust) Pty Ltd v Advanced Building Systems Pty Ltd (1999) 164 ALR 239 and, more recently, in H Lundbeck A/S v Alphapharm Pty Ltd (2009) 177 FCR 151. It is not necessary to set out the discussion in those cases of the relevant principles. It is enough to note that a prior publication will not amount to an anticipation of an invention claimed as a combination if it discloses some, but not all, of the essential features of that combination.

    [11] Samsung Electronics Co. Limited v Apple Inc. [2011] FCAFC 156 at [127].

    Li

18. According to the abstract of Li, the disclosed invention relates to:[12]

    An electronic firearm sight comprises a set of zoom lens, an image sensor, a processor, a memory, and a touch display screen for the operation of adjusting and determining a reticle. A method for adjusting the reticule comprises the following steps: displaying a coordinate on the touch display screen, setting the origin of the coordinate at the center of the touch display screen, aiming at an object with the origin, firing the first bullet to get the first bullet hole on the touch display screen, obtaining the coordinate value of the first bullet hole, determining the opposite valu [sic], clicking on the place of the opposite value, moving the origin of the coordinate to the place of the opposite value, and aiming at the object with the new origin, firing the second bullet to get the second bullet hole, removing the coordinate; clicking the second bullet hold, an adjusted reticle appearing.

    [12] Li, Abstract.

19. As background, Li provides a brief description of the related art. Generally, there are several sighting devices which can be used in firearms. A reticle is a very important factor in locating and aiming at a target in an accurate, rapid and convenient manner. However, Li explains that current reticles are afflicted with many disadvantages. Relevantly, it is common to use two devices to adjust the reticle. One, to control the reticle vertically, and two, to control the reticle horizontally. This may be performed by use of two buttons or knobs to make the reticle move.[13] However, this adjusting method is afflicted with shortcomings. By design, the mechanical nature of the buttons or knobs may eventually wear out, causing inaccuracies. Furthermore, the reticle may be moved according to a pre-set rated value as a moving scale, which represents a fixed value of the movement of the reticle. The limitation with a fixed value, is that the reticle can only be approximately superimposed on a bullet’s impact point. In practice, where a target is at a range of more than one thousand yards, the error value of the superimposition can be quite large.[14]

    [13] Ibid [0005].

    [14] Ibid [0006].

20. Generally, Li describes an electronic firearm sight, which comprises a touch display screen for adjusting the a reticle.[15] The electronic firearm sight also contains pre-saved data or information such as a cartesian coordinate system, ballistic trajectory data of different bullets, different reticle scales based on the different trajectory data, and different colours or shapes of the reticle scales.[16] Moreover, the electronic firearm sight also utilises a combination of zoom lenses and an image sensor, thus allowing a long-distance object to be displayed clearly on the screen, and a rangefinder for detecting and measuring the distance between the aimed object and the sight itself.[17] Li is best described with reference to figures 5 as shown below:

    [15] Ibid [0010].

    [16] Ibid [0011].

    [17] Ibid [0012] – [0013].

1. By performing the calibration steps as outlined in figure 5 above, the user is then provided with a reticle that is appropriate for the weapons being used, and accounting for environmental conditions.

2. In my view, Li differs from at least independent claim 1 and 8 in that Li does not disclose a control zone, inlaid within the images displayed on the screen and distinct from the aiming frame, or that the aiming frame is moved at a speed on the screen as a function of contacts exerted on the touch interface in the control zone. Consequently, I find that claim 1 and 8 is novel in light of Li. It follows that the same consideration also applies to all of the dependent claims.

   Inventive Step

3. In Albany Molecular Research Inc v Alphapharm Pty Ltd, Jessup J conveniently laid out the relevant principles applying to Section 18(1)(b)(ii) for lack of inventive step:[18]

   Armed with common general knowledge, and possibly also with one of the kinds of information referred to in s 7(3), the invention in question will have been obvious to the skilled person referred to in s 7(2) if he or she “faced with the same problem would have taken as a matter of routine whatever steps might have led from the prior art to the invention, whether they be the steps of the inventor or not”: Wellcome Foundation Limited v VR Laboratories (Aust) Pty Ltd (1981) 148 CLR 262, 286; Aktiebolaget Hassle v Alphapharm Pty Ltd (2002) 212 CLR 411, 432 [50]. The content of the concept of “a matter of routine” approved by the High Court in the latter case was that provided by Graham J in Olin Mathieson Chemical Corporation v Biorex Laboratories Ltd [1970] RPC 157, 187-188:

   Would the notional research group at the relevant date, in all the circumstances, which include a knowledge of all the relevant prior art … directly be led as a matter of course to try [that which was invented under the patent in suit] … in the expectation that it might well produce [the solution to the problem which gave rise to the invention in suit]?

   [18] Albany Molecular Research Inc v Alphapharm Pty Ltd [2011] FCA 120; 90 IPR 457 at [152].

4. Where the invention involves a combination of integers, obviousness is to be determined by reference to the combination as a whole and not each integer individually:[19]

   the interaction between the integers of which is the essential requirement for the presence of an inventive step. It is the selection of the integers out of "perhaps many possibilities" which must be shown by [the Respondent] to be obvious, bearing in mind that the selection of the integers in which the invention lies can be expected to be a process necessarily involving rejection of other possible integers.

   [19] Aktiebolaget Hassle v Alphapharm Pty Ltd [2002] HCA 59; 212 CLR 411 at [41]; See also Minnesota Mining and Manufacturing Co v Beiersdorf (Australia) Ltd [1980] HCA 9; 144 CLR 253.

   Problem to be solved and Common General Knowledge

5. To determine whether an invention would be obvious in light of common general knowledge, a useful test that should be applied is the Cripps question which can be simplified to:[20]

   Would the person skilled in the art (in all the circumstances) directly be led as a matter of course to try the claimed invention in the expectation that it might well produce a solution to the problem?

   [20] Olin Mathieson Chemical Corporation v Biorex Laboratories Ltd [1970] RPC 157 at [187] – [188]; The question was endorsed in Aktiebolaget Hassle v Alphapharm Pty Ltd [2002] HCA 59; 212 CLR 411 as a ‘reformulation of the Cripps question’. See also Nichia Corporation v Arrow Electronics Australia Pty Ltd [2019] FCAFC 2 at [65] – [80] where ‘the context of the specification as a whole are relevant to the appropriate formulation of the Cripps question in a given case. A “useful alternative” is one which is useful compared to the prior art in the field of the invention. A thing “useful for any other purpose” is also to be understood in this context.’

6. Moreover, it is not sufficient to establish common general knowledge solely by reference to a publication. Rather, it must be shown that the information contained in the publication formed part of the common general knowledge. This principle is set out in Ranbaxy Laboratories Limited v AstraZeneca AB where Middleton J stated:[21]

   As I noted in Eli Lilly [2013] FCA 214, information does not constitute common general knowledge merely because it might be found, for example, in a journal, even if widely read by persons in the art: see Wake Forest University Health Sciences v Smith & Nephew Pty Ltd (No 2) (2011) 92 IPR 496; [2011] FCA 1002 at 514 [96], citing British Acoustic Films (1936) 53 RPC 221 at 250 (which was also affirmed in General Tire (1971) 1A IPR 121 at 135).  Reference in this regard is made to the words of Luxmoore J in British Acoustic Films (1936) 53 RPC 221 at 250, cited by Lehane J in Aktiebolaget Hässle v Alphapharm Pty Ltd (1999) 44 IPR 593; [1999] FCA 628 at 605 [39]:

   In my judgment it is not sufficient to prove common general knowledge that a particular disclosure is made in an article, or series of articles, in a scientific journal, no matter how wide the circulation of that journal may be, in the absence of any evidence that the disclosure is accepted generally by those who are engaged in the art to which the disclosure relates. A piece of particular knowledge as disclosed in a scientific paper does not become common general knowledge merely because it is widely read, and still less because it is widely circulated. Such a piece of knowledge only becomes general knowledge when it is generally known and accepted without question by the bulk of those who are engaged in the particular art; in other words, when it becomes part of their common stock of knowledge relating to the art.

   In Alphapharm (2008) 76 IPR 618; [2008] FCA 559, Lindgren J observed that (at 667 [221]):

   [I]t was held in Astra that information recorded in a document, even a document widely circulated within the art, is not part of general common knowledge merely because the skilled addressee could be expected to locate it. The question is whether it is “‘generally accepted without question”‘ or “‘generally regarded as a good basis for further action”‘ by the bulk of those in the art.

   [21] Ranbaxy Laboratories Limited v AstraZeneca AB [2013] FCA 368 at [217] – [218].

7. As outlined above, the specification provides an overview on issues pertaining to conventional aiming systems and that ‘[a]n object of the invention is to propose an aiming system that enables an operator to point more easily at a target visible on a screen of said aiming system.’[22] The specification then explains that proposals have been made, to cover the surface of the screen with a touch interface which allows an operator to control an aiming frame by pressing a finger on the screen.[23] However, as a target may be of small dimensions and moving, a touch control interface may prove problematic for an operator to correctly, and accurately, point at a target.[24] I am satisfied that the problem to be solved, stems from the use of touchscreen targeting interfaces as provided in the specification.

   [22] Specification as filed, Page 2 Lines 3 – 5.

   [23] Ibid Page 1 Lines 20 – 23.

   [24] Ibid Page 1 Lines 29 – 35.

8. From the above, Li does not disclose a control zone, inlayed within the images displayed on the screen and distinct from the aiming frame, or that the aiming frame is moved at a speed on the screen as a function of contacts exerted on the touch interface in the control zone. In the examination report, the examiner considered that Li and the present invention:

   both solve the problems of the prior art by moving a reticle using interactions with a touchscreen. The difference lies in how they utilise the touchscreen to aim the reticle. D1 uses a single touch to move the reticle, while the claimed invention uses a user interface element to move the touchscreen. This claimed approach was well known in the art before the priority date, as per the objections of the previous report. The claimed approach is therefore not inventive.

9. The examiner acknowledged that Li does not teach that the aiming frame is moved at a speed on the screen as a function of contacts exerted on the touch interface in the control zone. However, the examiner considered that this feature formed part of the common general knowledge in the art, as it is disclosed in Howard and Luong. That is, the examiner has relied upon the disclosure of Howard and Luong as evidence, of common general knowledge in the art. On this point, I echo the same sentiments as Beach J in Meat & Livestock Australia Limited v Cargill, Inc on the question of what constitutes common general knowledge:[25]

   There is also a further point to be made concerning common general knowledge. There is no general principle permitting admissions in the specification of a patent to be used to establish in and of themselves that information is common general knowledge. Whether information has become so widely assimilated that it forms part of common general knowledge must be determined on the evidence, although admissions can be considered as part of that evidence.

   [25] Meat & Livestock Australia Limited v Cargill, Inc [2018] FCA 51 at [688].

10. The Applicant’s submissions originate from two shortcomings of Li, which is outlined in the following paragraph:[26]

    On one hand, the existing sight, either mechanically or electronically, all set two buttons or knobs to make the reticle move. With this design, not only the errors of the two parts themselves, but also their wearing out could cause inaccuracies to adjusting the reticle. On the other hand, these devices all preset a rated value as a moving scale.

    (emphasis added by the Applicant)

    [26] Applicant Submissions, Page 2; Li, [0006].

11. The Applicant accepts that the first issue, being that the buttons or knobs may get worn out, is attended to by using a touchscreen. However, ‘[i]t is the way the touchscreen of [Li] is used to move the reticle that circumvents the “moving scale” issue.’[27]

    [27] Ibid Page 2.

12. In Li, movement of the reticle is near instantaneous as it merely requires the user to touch the screen on the desired location. While Li does contemplate that the reticle can be moved via buttons or knobs, these control mechanisms only allow the reticle to be moved according to a pre-set rated value as a moving scale, which represents a fixed value of the movement of the reticle. This limitation can prove to be problematic where high accuracy is required. The Applicant submits that this issue ‘would be relevant with any method that involves direct and continuous movement of the reticle at a speed (such as vertical and horizontal movement).’[28]

    [28] Ibid Page 2.

13. Generally, I do not disagree that the use of a joystick type control mechanism, for an aiming system, to be known in the art as discussed in the specification.[29] It is not beyond the realms of possibility, that a person skilled in the art may consider implementing a touch interfaces on an aiming system, to be a viable option.[30] Moreover, prima facie it is unlikely that there would be any great difficulty to utilise an electronic joystick type control, over a conventional mechanical mechanism, as exemplified in Howard and Luong. In this regard, the relevant question is whether a person skilled in the art would be directly led as a matter of course to modify the system of Li, to utilise a control zone which allows an aiming frame to be moved based on contacts exerted on the touch interface in the control zone. Specifically, where the control zone is inlay on the same screen as, but distinct, from the aiming frame.

    [29] Specification as filed, Page 1 Lines 17 – 19.

    [30] Ibid Page 1 Lines 20 – 25.

14. In the Applicant’s view, Li teaches away from the claimed invention. The Applicant explains that:[31]

    Continuous movement of the reticle at a speed, especially when the speed can be varied, allows greater control over the reticle by a user and is desirable in scenarios with a dynamic target where the user needs to account for the target’s movement. In such systems with a continuously moving scale, the ‘moving scale’ issue could be eliminated by having a variable and adjustable scale, for example, by allowing the user to zoom in.

    [31] Applicant Submissions, Pages 2 – 3.

15. In relation to Howard and Luong, the Applicant provides the following explanation:[32]

    [B]oth [Howard] and [Luong] teach a method of continuously moving an object at a speed via a virtual joystick on a touch screen. [Howard] generally ‘relates to electronic devices that employ a touch screen’, while [Luong] relate to ‘electronic devices with touch-sensitive surfaces’. Neither [Howard] nor [Luong] relate to an aiming system with a reticle or aiming frame.

    [Li] teaches away from vertical and horizonal movement of the reticle as it leads to the ‘moving scale issue’, while [Howard] and [Luong] teach such a method of continuously moving an object (at a speed) on the screen.

    [32] Ibid Page 3.

16. Logically, by its very nature, an electronic control mechanism such as a control zone on a touch interface, is unlikely to be worn out in the same manner as a mechanical mechanism. However, I agree that Li teaches away from controlling a reticle using a control mechanism, such as a joystick type for example, due to the issues associated with having the reticle moved according to a pre-set rated value as a moving scale. It should also be noted that Li is primarily concerned with stationary targets, as opposed to a moving ephemeral target, such as in the claimed invention. Furthermore, as Li appears to be directed to an aiming system for a portable weapon, it follows that there would be different ergonomic considerations, which may not be applicable for a console, as in the present invention. On this basis, it appears clear to me that Li indicates a preference for direct control of the reticle due to its increased accuracy.

17. Moreover, as Li teaches away from a control mechanism based on continuous movement of the reticle at a speed, it follows that it would be unlikely that the disclosures of either Howard or Luong would be incorporated into Li, pro tanto, as to directly lead a person skilled in the art, to the claimed invention.[33] Consequently, in my view, claim 1 and 8 are inventive in light of Li. It follows that the same consideration also applies to all the dependent claims.

    [33] Cf Global Blue S.A. v Visa U.S.A. Inc. [2018] APO 86 where the elements of the claim interact with each other generally, in a known and predicable way. See also HRB Innovations, Inc. [2018] APO 63.

    Conclusion

18. On balance, I am satisfied that the invention as claimed is novel, and has an inventive step, in light of Li. I am satisfied that no other ground of objection applies. It is therefore open for me to direct that the application be accepted.[34] As I have no concerns or issues that require further examination,[35] I will therefore direct the application to proceed to acceptance.

    [34] Inguran, LLC [2015] APO 64; Apple Inc. [2018] APO 72.

    [35] Cf Apple Inc. [2018] APO 91 at [58] – [62] where I remitted the application back to examination as I considered that the examiner had not actively engaged with the issued addressed in the decision. See also Apple Inc. [2018] APO 54 at [75] – [78]; eBay Inc. [2019] APO 10 at [37] – [43].

    Isaac Tan
    Delegate of the Commissioner of Patents