Sportsbet Pty Ltd v Diogenes Limited - [2017] APO 60

IP AUSTRALIA
AUSTRALIAN PATENT OFFICE
Sportsbet Pty Ltd v Diogenes Limited [2017] APO 60

Patent Application: 2013333573

Title:Wagering apparatus, methods and systems

Patent Applicant:                   Diogenes Limited
Opponent:  Sportsbet Pty Ltd
Delegate:  Greg Powell
Decision Date:  5 December 2017
Hearing Date:  6 September 2017, in Canberra
Catchwords:  PATENTS – section 59 – opposition to the grant of a patent – inventive step – utility – manner of manufacture – claims found to not define a manner of manufacture – no possibility of overcoming this defect – opposition successful – application refused

Representation: Counsel for the Applicant: Ben Gardiner
Patent Attorney for the Applicant: Ernest Graf of Fisher Adams Kelly Callinans
Counsel for the Opponent: Craig Smith
Patent Attorney for the Opponent: Jeremy Robinson of Griffith Hack, Melbourne (by videoconference)

IP AUSTRALIA
AUSTRALIAN PATENT OFFICE
Patent Application: 2013333573

Title:Wagering apparatus, methods and systems

Patent Applicant: Diogenes Limited
Date of Decision: 5 December 2017
DECISION
The opposition is successful. The claims do not define a manner of manufacture. All other grounds of opposition were unsuccessful.
The application does not contain any material that could be used to avoid this finding.
The application is refused.
I award costs according to Schedule 8 of the Patents Regulations 1991 against the applicant, Diogenes Limited.
REASONS FOR DECISION

Patent application 2013333573 (“the opposed application”) was filed on 20 August 2013, as international application PCT/IB2013/003028 in the name of Diogenes Limited (“the applicant”). The application entered the national phase in Australia on 6 March 2015. The opposed application claims a priority date of 6 September 2012.
The applicant requested examination at national phase entry, and the opposed application was advertised as accepted on 16 July 2015.
A notice of opposition was filed by Sportsbet Pty Ltd (“the opponent”) on 16 October 2015. The Opponent filed a statement of grounds and particulars (the “SGP”) on 15 January 2016.
Evidence in support (“EIS”) was filed on 15 April 2016. This comprised:
· a statutory declaration dated 14 April 2016 by Mr David Sim with supporting exhibits DS-1 to DS-6 (“Sim1”); and
· a statutory declaration dated 15 April 2016 by Jeremy Robinson with supporting exhibits JNR-1 to JNR-12.
Evidence in answer (“EIA”) was filed on 19 July 2016. This comprised:
· a statutory declaration dated 18 July 2016 by Bernard Marantelli with supporting exhibit BJM-1; and
· a statutory declaration dated 19 July 2016 by Ernest Graf with supporting exhibits ERG-01 to ERG-10.
Evidence in reply (“EIR”) was filed on 20 September 2016. This comprised:
· a second statutory declaration dated 19 September 2016 by David Sim (“Sim2”).
The applicant filed an amended set of claims on 6 December 2016. These amendments were allowed unopposed on 10 April 2017.
An amended SGP was filed on 24 April 2017 in response to the amendments made to the claims and was allowed on 25 May 2017.
On 25 May 2017, the applicant requested that the Commissioner take note under regulation 5.23 of a declaration made by Gene Kilmov with supporting exhibits WBM001 to WBM004. The Commissioner’s delegate declined to take note of this declaration, and communicated this to the parties by a letter dated 7 June 2017.
The Invention as Described
The opposed application relates to the area of wagering systems and methods. The opposed application indicates that there are a range of betting and lottery products in the market and exemplifies pool products in particular, where the user (the “punter”) makes a selection of a number of outcomes (“legs”) of individual games. For example, in many countries it is possible to try and pick the winner of, say, six horse races to win a relatively large prize (a “jackpot”) for a relatively small outlay. However, even if the punter makes only one incorrect selection, they do not receive any pay-out.
While no particular problem is identified in the specification, the evidence of Marantelli notes (at [6] and [7]) that he believed that, as people got closer to wining the jackpot on their multi-leg wager, they could not emotionally, or financially, handle the “all or nothing” nature of the bet. The specification notes at page 1 that, within this market there was a need for new products “to generate and maintain consumer interest”.
A summary of the invention then follows. This summary states that, the present specification is directed to a betting product where, after the punter has made selections in a number of different legs of a multi-leg wager (in a very large variety of different and discrete events), at a point in time after the start of the wager, including a time where some of the legs have not been decided, a “buy-out” offer is made to those punters who could still win the jackpot. This buy-out offer is, in effect, an offer for the punter to sell their ticket(s) back to the game operator, or other entity, at a price that is not the full jackpot amount, but is more than what they paid for the bet.
For present purposes the nature of the invention is best understood by reference to the preferred embodiments as outlined with regard to figure 5. This figure is reproduced below.
The figure illustrates the process that occurs after the punter has purchased their ticket and a number, but not all, of the legs of the multi-leg game have completed.
More specifically, while this is not evident from the figure above, the invention involves what is called a “partial buy-out offer”, where the punter is offered an amount for their ticket but allowed to remain in the game such that, if they are then successful with their remaining legs, they share in a part of the jackpot prize, but do not receive everything they would have received if they did not accept the partial buy-out offer.
The Opposed Claims
The opposed application as amended, ends with 63 claims, of which claims 1, 25 and 34 are independent. Claim 1 is a method claim and claims 25 and 34 are system claims. Claims 25 and 34 are in substantially the same terms as claim 1, although claim 34 has a slight difference. Claims 1 and 34 are as follows, but the complete claim set is in the accompanying Annex A:
1.A method of conducting a multi-outcome wagering event for one or more players, wherein the wagering event comprises a defined number of legs, wherein a buy-out offer and a partial buy-out offer are capable of being generated at any time, and wherein a player is presented with at least a partial buy-out offer prior to completion of all of the defined number of legs, the method comprising the steps of:
providing one or more wagering input devices in communication with a system controller through which one or more players may participate in a multi-outcome wagering event, said system controller being adapted for:
initiating the multi-outcome wagering event for one or more players, said multi-outcome wagering event comprised of a defined number of legs, wherein one or more jackpots, or a portion thereof, is awarded at least where a particular number of the defined number of legs are completed;
receiving a wager via the one or more wagering input devices in response to input from a player desiring to participate in the multi-outcome wagering event, wherein the wager coincides with each of the defined number of legs;
generating a record reflecting the wager associated with the player at the system controller;
receiving input of an outcome of each of the defined number of legs corresponding to the multi-outcome wager event;
generating and causing display via the one or more wagering input devices the outcome of each of the defined number of legs to a player;
identifying one or more players eligible to win each of the defined number of legs based on the wager from among players participating in the multi-outcome wagering event,
determining any players eligible to win at least one jackpot or a portion thereof based on the potential outcome of each of the defined number of legs in comparison against the record reflecting the wager from among players participating in the multi-outcome wagering event, wherein players eligible to win at least one leg are eligible to win at least one jackpot or a portion thereof;
initiating and causing display of at least one partial buy-out offer via the one or more wagering input devices to any number of the one or more players that are eligible to win at least one jackpot for at least a portion of said at least one jackpot, said partial buy-out offer being initiated at any time before the multi-outcome wagering event has been completed;
receiving an acceptance of the partial buy-out offer via the one or more wagering input devices in response to input from a particular number of the players eligible to win at least one jackpot that have accepted the partial buy-out offer, each of the players not accepting the partial buy-out offer will remain eligible to win the at least one jackpot, and wherein each of the players accepting a partial buy-out offer remains eligible to win at least a portion of the at least one jackpot;
issuing a credit, tokens, currency or an award to the one or more players accepting the partial buy-out offer;
completing the remainder of the defined number of legs to finish the multi-outcome wagering event;
determining if any of the players have won the at least one jackpot or portion thereof;
notifying the players that have won the jackpot or portion thereof; and
issuing a credit, tokens, currency or an award to the players that have won the jackpot or portion thereof.
34.A wagering system including one or more wagering input devices for allowing the placement of a wager on one or more wagering events, the wagering system comprising:
a system controller configured to communicate with the one or more wagering input devices, said system controller configured to:
initiate the one or more wagering events for one or more players;
receive a wager via the one or more wagering input devices in response to input from a player desiring to participate in the one or more wagering events;
generate a record reflecting the wager associated with the player at the system controller;
receive input of an outcome of the one or more wagering events;
generate and cause display via the one or more wagering input devices the outcome of the one or more wagering events to a player;
identify one or more players eligible to win the one or more wagering events based on the wager from among players participating in the one or more wagering events;
determine any winners of the one or more wagering events based on the outcome of one or more wagering events in comparison against the record reflecting the wager from among players participating in the one or more wagering events;
initiate and cause display of both of a buy-out offer and a partial buy-out offer via the one or more wagering input devices to any number of the one or more players eligible to win before the one or more wagering events have been completed, wherein one or more additional buy-out offers or partial buy-out offers may be initiated and displayed via the one or more wagering input devices to any number of the one or more players that have not accepted a buy-out offer or a partial buy-out offer;
receive any acceptances of the buy-out offer or partial buy-out offer via the one or more wagering input devices in response to input from a particular number of the one or more players that have accepted the buy-out offer or partial buy-out offer; and
issue a credit, tokens, currency or an award to the one or more players accepting the buy-out offer or partial buy-out offer.
As can be seen, both claims define a method/system for offering partial buy-outs on bets placed by a punter. Claim 1 defines the bet being a multi-leg pool, while claim 34 defines placing a bet on “one or more” events and offering both a full and partial buy-out. For the present decision, this does not have any effect.
The Opposition
In the amended SGP the Opponent pursued grounds under:
·     s18(1)(a) – the invention as claimed is not a manner of manufacture;
·     s18(1)(b)(i) – the invention as claimed lacks novelty;
·     s18(1)(b)(ii) – the invention as claimed does not comprise an inventive step;
·     s18(1)(c) – the invention as claimed is not useful;
·     s40(2) – the specification does not describe the invention fully and/or end with claims defining the invention; and
·     s40(3) – the claims are not supported by matter disclosed in the specification and not clear or succinct.
At the hearing, and in the Opponent’s written submissions, the grounds pursued were limited to:
·     the invention as claimed is not a manner of manufacture;
·     the invention as claimed does not comprise an inventive step; and
·     the invention as claimed is not useful (i.e. lacked utility).
I will consider these grounds in the reverse order.
Onus of Proof
On 15 April 2013, the Intellectual Property Laws Amendment (Raising the Bar) Act 2012 (“Raising the Bar Act”) commenced which resulted in significant amendments to the Patents Act (“Act”) and the Patents Regulations (“Regulations”) affecting, inter alia, the standard of proof required for an opposition to succeed. For patent applications having a request for examination filed on or after the above commencement date, subsection 60(3A) applies:
“If the Commissioner is satisfied, on the balance of probabilities, that a ground of opposition to the grant of the standard patent exists, the Commissioner may refuse the application.” (emphasis added)
The examination of the opposed application was requested on 6 March 2015. Hence subsection 60(3A) applies to the instant hearing. In addition, the filing date of the request for examination being after 15 April 2013 also means that the application was examined under the amended provisions of the Act and Regulations following the Raising the Bar Act and the same are also applicable to the present opposition proceedings.
It is well settled that the opponent has the onus of establishing the facts supporting the grounds of opposition, and this applies even though the standard of proof is “the balance of probabilities”.
Utility
Section 18(1)(c) of the Act requires that for an invention to be patentable it must be useful. This requirement was expressed in the following manner at [141] of Ranbaxy Australia Pty Ltd (ACN 110 781 826) v Warner-Lambert Company LLC [2008] FCAFC 82 (“Ranbaxy”):
“Under ss 138 and 18(1)(c) of the 1990 Act, it is a ground of invalidity if the claimed invention is not useful ‘so far as claimed in any claim’. If the claimed invention does what it is intended by the patentee to do and the end obtained is itself useful, the invention is useful within the meaning of s 18(1)(c) (see Rehm Pty Limited v Webster’s Security Systems (International) Pty Limited (1981) 81 ALR 79 at 96; Welcome Real-Time SA v Catuity Inc [2001] FCA 445; (2001) 113 FCR 110 at 144; and Fawcett v Homan (1896) 13 RPC 398 at 405). As to the first aspect, the invention as claimed must attain the result promised by the patentee (Advanced Building Systems Pty Limited v Ramset Fasteners (Aust) Pty Limited [1998] HCA 19; (1998) 194 CLR 171 at 187).”
The opponent referred to Artcraft Urban Group Pty Ltd v Streetworx Pty Ltd [2016] FCAFC 29 (“Artcraft”) where it was stated at [120]-[121]:
“The ‘basic principle’ of inutility is that if an invention ‘does what it is intended by the patentee to do, and the end attained is itself useful, the invention is a useful invention’: Fawcett v Homan (1896) 13 RPC 398, Lindley LJ at 405, adopted by Gummow J as a correct statement of principle in Rehm Pty Ltd v Websters Security Systems (International) Pty Ltd [1988] FCA 162; (1988) 81 ALR 79 at 96 (‘Rehm’). What the invention is ‘intended’ to do is a matter to be gathered from ‘title and the whole of the specification’: Rehm, Gummow J at 96.
Put another way, the two questions are: first, what is the promise of the invention derived from the whole of the specification?; second, by following the teaching of the specification, does the invention, as claimed in the patent, attain the result promised for it by the patentee?: Décor Corporation Pty Ltd v Dart Industries Inc (1988) 13 IPR 385 at 394 (‘Décor v Dart’), Lockhart J (in the Full Court); Welcome RealTime SA v Catuity Inc [2001] FCA 445; (2001) 113 FCR 110 at 144 [160], Heerey J; H Lundbeck A/S v Alphapharm Pty Ltd [2009] FCAFC 70; (2009) 177 FCR 151 at 198 [217] (‘Lundbeck’), Bennett J; Ranbaxy Australia Pty Ltd v Warner-Lambert Co LLC [2008] FCAFC 82; (2008) 77 IPR 449 at 479 [141], Emmett, Weinberg and Bennett JJ. Further, ‘everything’ that is within the scope of a claim must be useful, that is, attain the result promised for the invention by the patentee: Lundbeck at 172 [81], Emmett J.”
The opponent submitted that the subject of each of the claims was only of any “practical utility” if the amount of the partial buy-back offer was calculated such that it allowed the operator of the system to be profitable. The opponent submitted that, when the specification was read as a whole, it was clearly directed to something that would be commercially sensible, involving undertaking a valuation of the punter’s wager after the completion of some, but not all, of the legs of a multi-leg bet, and presentation of an offer. The opponent noted the evidence of the specification and Mr Marantelli as to the complexity of the calculations involved in this. The opponent submitted that none of the claims, however, when construed correctly, included any limitation as to a valuation of the punter’s position, or the way the buy-back offer was calculated when that valuation was made. The opponent submitted that, therefore, it must follow that each claim included within its scope presentation of partial buy-out offers of any amount. As the claims did not limit the systems and methods to those which presented solely profitable offers, the claims lacked utility.
The applicant submitted they agree with the general principles as pointed out by the opponent, but noted that Artcraft at [119] stated:
“It is ‘no objection’ to the validity of an innovation patent granted under the Act that it is ‘commercially impracticable’. The utility of the patent depends upon whether, by following the teaching of the specification, the result claimed is produced: Advanced Building Systems Pty Ltd v Ramset Fasteners (Aust) Pty Ltd [1998] HCA 19; (1998) 194 CLR 171 at 187 [24], Brennan CJ, Gaudron, McHugh and Gummow JJ adopting and citing Lane Fox v Kensington & Knightsbridge Electric Lighting Co [1892] 3 Ch 424 at 430431.”
The applicant submitted that it did not understand how the claims could be restricted (i.e. drafted) only to offers that were profitable. The applicant also questioned why it was that operators could not be entitled to non-profitable offers and noted that unprofitable offers are not uncommon and could be for promotional purposes. The applicant submitted that, in any event, it was clear from the authorities that the opponent’s approach was not the way to approach utility. The applicant submitted that the approach was by considering what the promise of the invention is, and noted that this invention did not promise profitability. It provided a way to offer a customer an option.
The opponent responded, submitting that it would be wholly artificial to ignore the commercial realities to put a partial buy-out offer that could simply be gratuitous or random. To be a valuable alternative betting product, the offer had to be part of a commercial system. They pointed to the figures, such as the flowchart above, which showed a valuation of the position of the punters and to use that information for the purposes of making the offer.
I note further guidance on utility has been conveniently summarised at [117] of Inverness Medical Switzerland GmbH v MDS Diagnostics Pty Limited [2010] FCA 108 (“Inverness”):
“A principle has been expressed that all within the scope of a claim must be useful if the claim is not to fail for want of utility, so that a claim is bad if it covers something that will not produce the desired result, even if a skilled person would know which means to avoid it (WM Wrigley Jr Co v Cadbury Schweppes Pty Ltd [2005] FCA 1035; (2006) 66 IPR 298 at [138] per Heerey J and authorities there cited). This was the test applied by the primary judge in Lundbeck and the parties did not dispute this test in the appeal in that case (Lundbeck at [217]). However, this principle does not mean that a specification should be construed in a way that any sensible person would appreciate would lead to unworkability when by construction it could be given a more limited meaning(Welch Perrin at 602 per Menzies J). The claims should be construed as they would be by the person skilled in the art desirous of making use of the invention (Martin Engineering Co v Trison Holdings Pty Ltd (1989) 14 IPR 330 at 338 per Burchett J; see also Austal Ships Pty Ltd v Stena Rederi Aktiebolag [2005] FCA 805; (2006) 66 IPR 420 at [227]- [239]). It has also been said that a claim does not need to specify a limitation that was common knowledge in the art for that limitation to apply in construing a claim to avoid want of utility (Austal Ships at [236] per Bennett J, citing Washex Machinery Corporation v Roy Burton & Co Pty Ltd (1974) 49 ALJR 12 at 18 per Stephen J). In Lundbeck (at [217]), Bennett J, with whom Middleton J agreed, affirmed the test as set out in Ranbaxy and Austal Ships.”
While the Opponent referred to the discussion on utility in Sandvik Intellectual Property AB v Quarry Mining & Construction Equipment Pty Ltd [2017] FCAFC 138 (see [190]–[204]), I do not see that discussion as being inconsistent in any way with the above.

In my opinion, the applicant’s position is to be preferred. True it is that the claims must be construed using the well-established principles of such, and then a determination made of whether the promise of the invention is achieved by what falls within the scope of the claims. As already noted, the opponent indicated that the specification disclosed the need to undertake a valuation of the punters’ positions and make an offer on that information. However, that does not lead to a conclusion that profitability is a “promise” of the invention as I understand that to mean from the authorities. While I agree that addressing profitability may well be a sensible thing to do (since it is unlikely that a person goes into business to lose money), the specification does not promise it. Moreover, the opponent could not point to any specific part of the specification which promised profitability. Nor did they point to any evidence which specifically addressed this issue. The specification talks of “new products to generate and maintain consumer interest”. Mr Marantelli’s evidence talks to punters not being able to “emotionally” or “financially” able to “handle the ‘all or nothing’ nature of the bet” and his introduction of a partial buy-out to address the volatility of “always being one result from elimination”. The claimed invention seems to address those promises.
Accepting that the claims may very well cover non-profitable offers does not change this. As the applicant noted, there may well be a myriad of reasons to do so. For example, one reason may be as an introduction to a newly registered punter with the hope that these early “wins” encourage them to remain in the system and wager more money.
I am not satisfied that any of the claims fail for want of utility.
Inventive Step
The statutory basis for inventive step is set out at s7(2) and s7(3) of the Act, and is reproduced below:
“(2)   For the purposes of this Act, an invention is to be taken to involve an inventive step when compared with the prior art base unless the invention would have been obvious to a person skilled in the relevant art in the light of the common general knowledge as it existed (whether in or out of the patent area) before the priority date of the relevant claim, whether that knowledge is considered separately or together with the information mentioned in subsection (3).
(3)     The information for the purposes of subsection (2) is:
(a)   any single piece of prior art information; or
(b)   a combination of any 2 or more pieces of prior art information that the skilled person mentioned in subsection (2) could, before the priority date of the relevant claim, be reasonably expected to have combined.
In the present case, the opponent did not contend that the claims lacked an inventive step in light of information mention in subsection 7(3) when combined with the common general knowledge (“CGK”). Instead, the opponent’s submissions were that the claims lacked inventive step in light of the CGK alone.
The question of obviousness has been extensively considered by the courts. In particular Aickin J. stated in Wellcome Foundation Ltd. v VR Laboratories (Aust) Pty. Ltd. [1981] HCA 12 at [45]; (1981) 148 CLR 262 at 286 (“Wellcome Foundation”):
“The test is whether the hypothetical addressee 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.”
In Aktiebolaget Hassle v Alphapharm Pty Ltd [2002] HCA 59; 212 CLR 411 at [53], the High Court accepted the approach taken in Olin Mathieson Chemical Corporation v Biorex Laboratories Ltd [1970] RPC 157 at [187] where Graham J posed the reformulated Cripp’s question:
“Would the notional research group at the relevant date, in all the circumstances, … directly be led as a matter of course to try [the claimed combination] in the expectation that it might well produce a [useful or better result]?” (emphasis in the original)
The Skilled Addressee and the Evidence
The skilled addressee is taken to be a non-inventive worker in the art with respect to the invention concerned, is taken to have the CGK in the art, and could be a team of people; see Root Quality Control Pty. Ltd. v Root Control Technologies Pty. Ltd. [2000] FCA 980 at [70] to [71] (“Root Quality Control”); Catnic Components Limited and Another v Hill & Smith Limited (1982) RPC 183 at 242 to 243 and Minnesota Mining & Manufacturing Co. vBeiersdorf (Australia) Ltd. [1980] HCA 9 at [115]; (1980) 144 CLR 253 at 292. In particular in Root Quality Control at [71] Finkelstein J. stated that “... the patent is directed to a person interested in making, constructing, compounding or using the invention...”
I consider that the skilled addressee in the present case is a person or team of persons involved in or interested in the design and development of new betting products to maintain consumer interest, with some focus in the area of multi-leg bets.
In the present case, neither party contended that the declarants for the other side were not such a person and I am willing to proceed on the basis that they can be considered to be representative of the person skilled in the art. Ultimately it will be up to me, as the decision maker, to determine if any particular part of the evidence that I intend to rely upon is tainted by hindsight or bias and to weigh such evidence accordingly.
Discussion – Inventive Step
I observe that there was very little discussion on the problem to be solved, either in the written submissions or at the hearing. This is primarily because the opponent advanced what was, at its heart, a very simple proposition.
Essentially, the opponent contended that it was CGK that gambling inherently involved the punter exposing themselves to risk. They contended that hedging was a CGK concept which was aimed at reducing the risk. In the opponent’s submission there would be many strategies for hedging a bet and, in the opponent’s submission, the concept of “buying out” a ticket was “inherently obvious”. They offered the following example:
“A punter bets $2 on picking the winning horse of two different horse races (this simple example involves a common betting product, called a ‘double’). If the punter correctly picks the winner of the first race, then at that point in time (that is, before the second race takes place), the position of the punter vis-à-vis the bookmaker is exactly the same as for a single horse race (ie the second race). The amount that the punter stands to win if they are correct in picking the winner of the second race can be readily calculated and used, based on the then-existing odds being offered on that second race, to calculate the effective value of a hypothetical single bet on the winner of that second race.
The precise value of the punter’s stake will depend on the relevant odds, but in practical terms will be greater than the $2 originally outlaid (since they correctly picked the winner of the first race). The bookmaker can reduce their risk in respect of that punter’s wager on the second race if they are able to buy out that punter’s stake in the second race for less than its calculated value. (And the particular punter may want to take the benefit of the first win without taking the further risk involved in the second leg.)”
The opponent’s submissions continued that, if the concept of completely buying out a ticket was obvious, then the concept of a partial buy-out was no less obvious and the shift to a partial buy-out was trivial. They submitted that:
“if the concept of a complete buy out is obvious, the concept of a partial buy out is no less obvious. Indeed, precisely the same outcome would occur if the punter in the above example placed two $1 bets, and then agreed to a ‘complete’ buy out of one of those bets only.”
The applicant disputed this. The applicant pointed to the evidence of Mr Marantelli which noted a “more realistic” example involving a punter who has bet $10 on a “pick 6” racing pool with a $3,000,000 prize who was looking to hedge his bet. According to Mr Marantelli’s evidence, to cover the $3,000,000 would require the punter to fund and transact $2.125M in the window between race 4 and race 5. The applicant submitted that Mr Marantelli’s evidence showed the extreme complexity of the system required to present the invention on a large scale. They submitted that the invention overcame the difficulty of finding a way to offer a partial buy-out in a multi-leg wager in a timely and neatly packaged manner.
Both party’s submission is defective in some way, but, ultimately, the opponent’s argument does not succeed. It is the opponent who bears the onus and, on the evidence before me, they do not make out their case.
Looking at the applicant’s arguments, they suffer from the fact that the complexity that may well lie behind the conception and implementation of a system which is (to use Mr Marantelli’s evidence):
“ … capable of tracking consolation pathways and clashing tickets through 410,338,673 permutations … with cash-out offers which can be accepted in full or in part by players”
does not form any part of the claims. As the opponent pointed out, the level of abstraction in the claims sets the framework for the inventive step consideration. In the present case, the calculations involved may not necessarily be simple, and the work in setting the system up may be hard, but the claims do not have anything to say on the matter.
In essence, given the abstract nature of the claims, the modified Cripp’s question relevant to the present application is:
“Would person or team of persons involved in or interested in the design and development of new betting products at the relevant date, in all the circumstances, … directly be led as a matter of course to try implementing a partial buy-out of punters’ tickets in the expectation that it might well produce a new product to maintain consumer interest?”
It is at this point that the opponent’s case breaks down. This is primarily due, as noted by the applicant, to the lack of evidence supplied by the opponent on this point.
Mr Sim’s evidence indicates that multi-leg wagers were well known, and systems existed to facilitate these wagers. He states that mechanisms for buying back multi-leg bets were generally known and that he did not believe that offering a buy-out can be considered new. He then states:
“… however it may be that the idea of offering a partial of full buyout automatically on a large scale of active wagers (e.g. most, if not all, multi-leg bets) could possibly be new.” (see [53] of Sim1)
While this may seem to gainsay the opponent’s contention, the opponent also stated, following Lockwood Security Products Pty Ltd v Doric Products Pty Ltd (No 2) (2007) 235 CLR 173 at [52], that an inventive step required that there be “a scintilla of invention”, or “some difficulty overcome, some barrier crossed”, and required something “beyond the skill of the calling”. I note that, while Mr Sim states in his evidence that the invention “would require sophisticated systems with the ability to offer a vast array of multi wagers to customers to be sold across several streams”, the systems of companies offering multiple wagers “would have been quite capable” of carrying out the invention (see [50] of Sim1). Mr Sim also states that “it would be relatively simple to calculate the value” of the pay-out (see [17] of Sim2), and that:
“building a wagering system to include partial ownership from scratch would not have been significantly more complicated before the Priority Date than building a wagering system from scratch that did not allow for partial ownership … additional functionality to implement partial ownership would, in my opinion, simply correspond to keeping additional information for each wager for recording multiple owners and their relative stake in the wager” (see [25] of Sim2).
In other words, as the systems that were around at the priority date were capable of carrying out the invention (a fact not disputed by the applicant), it was the opponent’s contention that it would not have involved an inventive step to implement partial buy-outs.
However, as noted by the applicant, this does not answer the relevant question as noted in paragraph 35 above. The question remains as to whether the PSA would be directly led as a matter of course to try partial pay-outs. That question is not answered by asking, knowing what is known now about the method disclosed in the application, whether the method would have been able to be implemented on the systems in existence at the priority date. Rather, the question is whether it would have been obvious to implement the system. The opponent’s evidence does not answer this question. As noted above, they address this point by saying that a partial buy-out is the next obvious step to take. The evidence does not support this.
I cannot find that the claims lack an inventive step.
Manner of Manufacture
The High Court in National Research Development Corporation v Commissioner of Patents (1959) 102 CLR 252 (NRDC), laid out the proper question for determination when one is considering patentable subject matter in the context of section 18(1)(a) of the Patents Act which refers to a “manner of manufacture”. They stated at [269] that the correct question is:
“Is this a proper subject according to the principles which have developed for the application of s. 6 of the Statute of Monopolies?”
With this at the fore of their considerations in respect of a claim to a process for eradicating weed from a stretch of land, the High Court in NRDC described subject matter that would be considered patentable (at [275]):
“The point is that 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.”
With reference to Virginia-Carolina Chemical Corp's Application [1958] RPC 35, I note that any presentation of information characterised solely by the content of that information has traditionally been non-patentable. 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.
More recently, it has been made clear that the assessment as to whether a claimed invention is properly the subject of a patent (i.e. is a manner of manufacture) is one of substance over form. As per D'Arcy v Myriad Genetics Inc [2015] HCA 35 (“Myriad”) at [144]:
“Whatever words have been used, the matter must be looked at as one of substance and effect must be given to the true nature of the claim.”
An approach to assessing the substance of a claim for patentability rather than its literal form is well founded in the established case law. Again referring to Virginia-Carolina Chemical Corp's Application, Lloyd-Jacob J said at [37]:
“In considering whether or not an application discloses a patentable invention, it is proper that attention should be directed to the alleged contribution to the art rather than the form of words tentatively put forward as defining the invention.”
Useful to considering patentability in a case-by-case sense, particularly when considering the substantive or formative presence of technology in a claim, are the following factors that were framed by the Full Court of the Federal Court in Commissioner of Patents v RPL Central Pty Ltd [2015] FCAFC 177 (“RPL”) at [99] in the context of computer related inventions:
·     It is necessary to ascertain whether the contribution to the claimed invention is technical in nature.
·     One consideration is whether 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.
·     Does the claimed method merely require generic computer implementation?
·     Is the computer merely the intermediary, configured to carry out the method using a computer readable medium containing program code for performing the method, but adding nothing to the substance of the idea?
Also of importance in this particular case is the observation in Grant v Commissioner of Patents [2006] FCAFC 120 at [14] that:
“[b]usiness, commercial and financial schemes as such have never been considered patentable (J Lahore, ‘Computers and the Law: The Protection of Intellectual Property’ [1978] FedLawRw 2; (1978) 9 Federal Law Review 15 at 22–3, approved in CCOM Pty Ltd v Jiejing Pty Ltd [1994] FCA 1168; (1994) 51 FCR 260 at 292) in the same way that the discovery of a law or principle of nature is not patentable. Sir Robert Finlay A-G observed in Re Cooper’s Application for a Patent (1901) 19 RPC 53 at 54, ‘[y]ou cannot have a Patent for a mere scheme or plan – a plan for becoming rich; a plan for the better government of a State; a plan for the efficient conduct of business’.”
The principles and approach set out in Myriad and RPL and other cases lead to the following steps as an aid to analysis under the ground of Manner of Manufacture:
1.   Construe the claim.
2.   Identify the substance of the claim (what is the alleged or actual contribution?)
3.   Ask whether the substance of the claim lies within established principles of what does not constitute a patentable invention (e.g. is it merely a scheme, plan, rules of gameplay, intellectual or genetic information?)
There being no difficulty or dispute in construction of the claims, it is appropriate to turn to considering the substance of the claimed invention.
Discussion – Manner of Manufacture
As noted above, the invention relates to a new product in the area of betting. The specification describes, in a schematic way, the system and hardware that is required to implement the invention. In general terms, this is shown in figure 1 which is reproduced below:
This figure shows a system controller, such as a central server 12 being connected, via the internet 10 with a number of input devices such as wagering stations 14, wagering terminals 16, internet-connected computers 18, smart phones 20, tablets 22, televisions 24 and gaming machines 26.
The specification at page 5 makes it clear that the system controller:
“should be broadly construed to comprise any hardware device or devices that includes at least one central processing unit (CPU) or other processing device and associated memory.”
The connected devices 14, 16, 18, 20, 22, 24 and 26 are envisaged to be operable over wired or wireless connections, and can be devices that required approval for operation from a regulatory agency (such as the wagering stations and terminals), or not (such as smart phones and the like).
The specification goes into greater detail as to the components of the systems within the central server which allow the server to make the necessary determinations as to the eligible tickets in order to make an offer to partially buy-out the punter’s wager, and the amount to offer. The specification does not go into any great detail as to the actual calculations that underlie the making of the offer. As such, noting figures 1 and 5 as reproduced in this decision, the present invention appears to be seeking the provision of a method and system which enables a partial buy-out offer to be made to a punter.
The opponent submitted that the method as claimed did not solve any technical problem relating to the central server or the connected terminals. They submitted that there was no steps carried out that were outside the normal use of a computer. Given that the input devices and the central server were only broadly defined in the specification, it was possible to conclude that they were operating in a conventional manner, running a series of mathematical calculations according to the software that those devices carried.

The opponent submitted that, if there was any ingenuity in the method or system, it lay in:
(a)the idea of offering a partial buy-back to a punter after one or more legs of a multi-leg wager have been completed; and/or
(b)the specific calculations embodied in the software implementing the idea in practice.
As such, given the broad nature of the disclosure as to the implementation on a computer, the method and system:
(a)did not “produce immediately or ultimately, a useful physical result in relation to a material or tangible entity” (as per NRDC);
(b)did not involve any technical contribution insofar as the invention required implementation on a computer – that is any ingenuity lay in the scheme itself with no artificial effect (beyond the manipulation of data as stored in the computer memory);
(c)involved an abstract idea, merely implemented in a computer, which facilitated the mathematical calculations required; and
(d)did not involve any steps that are outside the normal use of a computer.
It followed, according to the opponent, that the substance of the invention was a business scheme, where the punter was provided with an opportunity to accept a partial buy-out offer, thereby hedging their risk in respect of the remaining legs of a multi-leg wager.
The applicant submitted that the specification claimed a method and system for the practical implementation of an idea. It did not claim the abstract idea of making a partial offer itself. The application related to the implementation of the partial buy-out on a system which was composed of known hardware arranged in a new way and included, critically in the applicant’s opinion, a graphical interface displaying the offer on the punter’s device so as to allow acceptance of that offer. As such the ingenuity of the invention lay in the way the abstract idea was implemented.
The applicant noted paragraph 105 of RPL where it was stated:
“Care must be taken to consider the circumstances of the claimed invention, beyond the form of words used. In both IBM 2 and CCOM, the invention as claimed was patentable. However, the method in IBM 2 could have been characterised simply to involve ‘drawing a curve on a computer’; in CCOM, the claimed invention could have been characterised as ‘to convert a word into Chinese characters’.”
The applicant submitted that it was easy to misconstrue what an invention is by pitching it at the wrong level of abstraction. The applicant submitted that the substance of the invention lay in the presentation of the partial buy-out offer to the punter. They referred to the evidence of Mr Sim at [34], [42], [47], [52] and [53] of Sim1 and paragraph [15] of Sim2 as showing that he immediately saw the provision of the offer as being the essential part of the invention.
Focussing on the claims, the applicant noted that all claims contained the critical part of (to quote claim 1):
“initiating and causing display of at least one partial buy-out offer via the one or more wagering input devices to any number of the one or more players that are eligible to win at least one jackpot for at least a portion of said at least one jackpot, said partial buy-out offer being initiated at any time before the multi-outcome wagering event has been completed;
receiving an acceptance of the partial buy-out offer via the one or more wagering input devices in response to input from a particular number of the players eligible to win at least one jackpot that have accepted the partial buy-out offer, each of the players not accepting the partial buy-out offer will remain eligible to win the at least one jackpot, and wherein each of the players accepting a partial buy-out offer remains eligible to win at least a portion of the at least one jackpot;”
The applicant submitted that these features made it clear that the claim was more than just mere intellectual information, but was for a device that initiated and displayed an offer and provided the capacity to receive an acceptance of that offer.
It was only through these steps that the invention was able to achieve its practically useful effect and be distinguished from an abstract idea, or the mere computer implementation of an abstract idea. It involved the use of an apparatus and, as such, was technical in nature. In this way, it was submitted, it was distinguished from the invention of Research Affiliates LLC v Commissioner of Patents [2014] FCAFC 150, which involved little to no detail of the computer implementation. The applicant submitted that, using the distinctions drawn in RPL (see [100], [101]), the invention (i) was the employment of an abstract idea, rather than the abstract idea itself, (ii) was a technological innovation, rather than a business innovation, and (iii) involved the application and operation of an inventive method using the components of a machine (a computer), rather than a situation which is a mere scheme.
The applicant submitted that, in line with [104] of RPL, the present invention was patentable since:
“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”.
The applicant submitted that the invention in RPL, where there was no ingenuity in the computer implementation, no ingenuity in the criteria which were retrieved, or no ingenuity in the display of the questions, was to an algorithm for converting statements into questions to collect evidence, with the computer playing a limited role, and, thus, was directed to a scheme. The applicant submitted that this was not the case in the present application. In the present invention, the applicant conceded that the partial buy-out offer on its own would not be patentable. However, as the offer was part of the inventive concept and was created through the use of a computer, the computer presenting the partial buy-out offer (for acceptance) was outside the normal use of a computer and a manner of manufacture.
While accepting that the present invention involves a scheme, the applicant submitted that it was clearly not right to have no regard to the newness or inventiveness of underlying idea when assessing whether the implementation of an idea on a computer constitutes a manner of manufacture. The applicant submitted that, when talking about normal use of a computer or foreign use of a computer, that discussion did not necessarily relate to the algorithm used at all. It simply related to whether a computer had been used for that purpose before. The applicant observed that a wholly new inventive concept implemented by a computer was a foreign use of a computer and, therefore, patentable.
The applicant noted that paragraph [48] of Aristocrat Technologies Australia Pty Limited [2016] APO 49 (“Aristocrat”) stated (applicant’s emphasis):
“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.”
The applicant submitted that the interface of the present invention presenting a partial buy-out offer (which had never been done before) was not “normal” for a computer and provided the requisite technical contribution to achieve patentability.
The applicant also discussed the factors that are listed at paragraph [35] of Aristocrat that the delegate identified as matters to be considered in relation to manner of manufacture, particularly for computer-implemented inventions (see Annex B at the end of these reasons). I will not list these arguments explicitly but instead note that the general tenor of the submissions were to the conclusion that the implementation of the idea of a partial buy-out provided the necessary technical contribution.
The applicant also submitted that the opponent’s position seemed to be that it was not possible to have a patent for a computer implementation of an abstract idea (possibly except in very limited circumstances) as these types of inventions could always be reduced down to the point of merely applying a computer algorithm to implement the idea. In the applicant’s submission, that would rule out patents on inventions such as those in CCOM and IBM since, at their heart, all that was really happening was the use a computer to do its normal purpose – which is to run algorithms. The applicant submitted that the test could not be that, and that it had to be something different from that. In the applicant’s submission, the test had to be to ask whether the computer was doing something different from the way the particular kind of computers used in the implementation usually worked in order to implement the abstract idea. They submitted that this was the case with the Aristocrat decision where the gaming machine worked in a way that was foreign to the normal gaming machine.
The opponent responded agreeing that the invention claimed was not directed to an abstract idea per se, but maintained that the substance of the invention provided no relevant technical contribution. The opponent specifically noted:
·Displaying the offer (regardless of whether the offer was new or not) did not provide the technical contribution as that particular step was a given when the invention relates to the idea of allowing a partial buy-out. If the offer was not displayed then it was difficult to see how that could be accessed by the punter if it were not displayed.
·Having a product (i.e. a system) configured to carry out a method (as is the case with claim 25 of the present application) does not result in a manner of manufacture. The test was one of form over substance. It was noted that claim 5 of the RPL case (which was found to not define a manner of manufacture) was of the same type as claim 25, while claim 1 of Aristocrat was to a machine and claim 10 was to a method, both of which were found to define a manner of manufacture.
·Whether the invention was able to be performed without a computer was not an indicator of whether or not the claims defined a manner of manufacture. As was noted in [107] of RPL:
“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?”
It was noted by the opponent that, even with the point that the invention of RPL could not be carried out without a computer, it was still not a manner of manufacture.
·The IBM decision was for an invention to display a smooth curve on a computer screen, which involved an impact on the operation of the computer which had not been capable of displaying such a curve before. This had an analogy to the Aristocrat case, where the gaming machine had not has the capability to display what was claimed as the invention.
·Merely a new use of a computer, brought about by a new program, does not, in itself, create a manner of manufacture. It was, once again, a matter of understanding what the substance of the invention is.
·Aristocrat was not on point to the present application since the invention of Aristocrat involved the display which allowed selection of a game and a denomination with a single touch on a touch sensitive screen. The present application was presentation of the buy-out offer by any means and acceptance by any means. As such the display and acceptance of the buy-out offer was a trivial aspect of the invention which added nothing the substance, which was the idea of a partial buy-out.
In Aristocrat it was observed by the delegate at [43] that the examiner had characterised the substance of the invention as being “games characterised by rules for the progress of game play”, and that the interface was merely part of the computer acting as an intermediary to carry out the method without adding anything to the substance. At [44] the delegate found that this characterisation could not be correct as the selection of game and denomination occurred before playing the game and, as such, the interface could not be part of the game play. The delegate noted that the selection of a game and selection of a denomination was known, but not the simultaneous selection of both. The delegate then noted in [48], as quoted above, that the substance of the invention is the presentation of game information in a particular position and functionality is generated by the use of this positional location. That is, it is not the interface itself that gives the invention the characteristic of a manner of manufacture; it is the fact that the machine prior to the invention did not have the capability to achieve the result. To put it another way, the interface in Aristocrat is the physical manifestation of an invention that gave the machine the capability to simultaneously accept selection of game and denomination.
This is different to the present invention. The present specification, and the evidence, does not allude to any problem with the generic computers and users devices (such a smart phones) implementing the invention being incapable of performing the invention. Indeed, the applicant stated at the hearing that, having become aware of the invention, it was well within the skill of a programmer to write the software to implement the idea of a partial buy-out (notwithstanding its complexity – see also paragraph [40] of Mr Marantelli’s declaration). In addition, it was acknowledged that the components forming the system (and carrying out the method) were all known components and it was not contended that they were operating in any different way. Given that, and following the guidance offered in paragraph [58] above, the contribution to the art and, therefore, the substance of the invention, must lie in what was being implemented. Consistent with the opponent’s submissions, what was to be implemented was the idea (i.e. scheme) in which a partial buy-out is offered to a punter. The scheme is what is shown in figure 5 (above) and it is clearly a business scheme.
The scheme of the present invention is seeking to provide a new gaming product and, as part of that, a partial buy-out offer is displayed to the punter and the punter is given the option to accept the offer. To enable this display and acceptance, clearly a new interface is generated. It is an interface that has never been seen before, but it can be no more than that – an interface. The display of the present invention cannot be compared to the interface that existed in Aristocrat. This scheme clearly does not improve the functionality of, or solve a technical problem within, a computer. The computer, and associated system components, is simply the intermediary to perform the method which only requires generic computer implementation. The interface simply displays intellectual information, being the amount that is being offered to partially buy-out the punter’s wager, and providing an opportunity for the offer to be accepted. The interface of the present invention is not the physical manifestation of something more. It follows that this scheme is not a manner of manufacture.
As noted by the applicant, all independent claims contain the steps (or capability) of initiating and displaying a partial buy-out offer and receiving acceptance of the offer. The applicant did not point to any other features of the independent claims that could be said to supply the requisite technical contribution over and above this idea. It is clear that the substance of the invention defined by the independent claims is a scheme embodying a business method and, as such, they are not directed to a manner of manufacture.
As to the dependent claims, I can see no feature in them that could be characterised as something more than either the display of mere intellectual information, or the progress of the scheme. For example claim 2 merely provides a definition of what a multi-leg wager is, claim 3 defines steps taken to make a wager, claim 4 defines types of games that a wager could be made on, claim 5 defines who may initiate the buy-out offer, and claim 6 defines when a jackpot (or any fraction thereof) is awarded to a punter(s). None of these features could be said to be anything other than rules for the progress of the scheme from wager through to jackpot pay-out. They are entirely within the realm of business. The remaining dependent claims are all variations on these themes of rules, types of game, wagering process, game progress and pay-out.
The opponent submitted that there was no claim that could be said to have a manner of manufacture and the applicant appeared to run its case on the assumption that the question of manner of manufacture rose or fell with the feature of the interface. It follows that the claims in general do not involve a manner of manufacture.
Please note, unlike the applicant’s submission, that I am not saying that the present invention is not a manner of manufacture because it is simply a computer running an algorithm. Rather I am saying that the algorithm that is being run embodies a business method, and the implementation of that business method does not involve operations that are foreign to the usual operation of the system components that have been employed to implement the business method. As such, the substance of the invention is a business method which, as the courts have said time and again, is not patentable.
Conclusion
The opposition is successful. The claims do not define a manner of manufacture. No other grounds of opposition were successful.
It is customary in this situation for the applicant to be given an opportunity to file amendments to overcome defects identified in a decision. The applicant drew my attention to various parts of the specification during the course of their submissions to highlight the technical nature that they submitted was embodied in the interface. For example, they noted that the system controller made the determination of what would be the appropriate values to be offered as the buy-out and then presented the new interface to the various user devices used by punters to access the wagering system. They noted that various configurations of gaming terminals could be used and that these terminals could be loaded with the software enabling the method. However, as is clear from my decision, the provision of the interface does not provide a manner of manufacture. Moreover, these features provide no technical contribution that could be used to define a manner of manufacture. No other mention was made of other features in the specification that could be said to do something more than just implement the business method. Most of the specification is taken up with a discussion on the rules, types of game, wagering process, game progress and pay-out arrangement of the scheme, with very little discussion of the actual programming involved. Indeed, as I have already said, it was explicitly noted by the applicant that the programming was within the skill of one in the art once exposed to the idea (although I note in passing that, notwithstanding the fact that the invention was exposed upon publication of the specification and the programming is apparently within the normal skill, Mr Marantelli states in his evidence (see [40]) that the system has yet to be replicated on most levels by his competitors).
As such, in the present case, there seems to be little utility taking the usual course. It is difficult to see what could be added to the claims that would import a technical contribution of the sort sought after by the courts. Where an action would serve no useful purpose, it is the well-established practice of the Commissioner to decline to go any further. Providing an opportunity to amend would simply prolong a process that should not go any further.

Consequently, it is appropriate that I refuse the application.
Costs
Costs usually follow the event. Various submissions were made by the parties as to the award of costs, noting that an agreement had been reached between the parties that the applicant would pay costs by up to the date that the amendments that had been made during the course of this opposition had been allowed, and then costs would follow the event after that date. It follows, given my decision, I award costs according to Schedule 8 of the Patents Regulations 1991 against the applicant, Diogenes Limited.
Greg Powell
Delegate of the Commissioner of Patents
Annex A
1. A method of conducting a multi-outcome wagering event for one or more players, wherein the wagering event comprises a defined number of legs, wherein a buy-out offer and a partial buy-out offer are capable of being generated at any time, and wherein a player is presented with at least a partial buy-out offer prior to completion of all of the defined number of legs, the method comprising the steps of:
providing one or more wagering input devices in communication with a system controller through which one or more players may participate in a multi-outcome wagering event, said system controller being adapted for:
initiating the multi-outcome wagering event for one or more players, said multi-outcome wagering event comprised of a defined number of legs, wherein one or more jackpots, or a portion thereof, is awarded at least where a particular number of the defined number of legs are completed;
receiving a wager via the one or more wagering input devices in response to input from a player desiring to participate in the multi-outcome wagering event, wherein the wager coincides with each of the defined number of legs;
generating a record reflecting the wager associated with the player at the system controller;
receiving input of an outcome of each of the defined number of legs corresponding to the multi-outcome wager event;
generating and causing display via the one or more wagering input devices the outcome of each of the defined number of legs to a player;
identifying one or more players eligible to win each of the defined number of legs based on the wager from among players participating in the multi-outcome wagering event,
determining any players eligible to win at least one jackpot or a portion thereof based on the potential outcome of each of the defined number of legs in comparison against the record reflecting the wager from among players participating in the multi-outcome wagering event, wherein players eligible to win at least one leg are eligible to win at least one jackpot or a portion thereof;
initiating and causing display of at least one partial buy-out offer via the one or more wagering input devices to any number of the one or more players that are eligible to win at least one jackpot for at least a portion of said at least one jackpot, said partial buy-out offer being initiated at any time before the multi-outcome wagering event has been completed;
receiving an acceptance of the partial buy-out offer via the one or more wagering input devices in response to input from a particular number of the players eligible to win at least one jackpot that have accepted the partial buy-out offer, each of the players not accepting the partial buy-out offer will remain eligible to win the at least one jackpot, and wherein each of the players accepting a partial buy-out offer remains eligible to win at least a portion of the at least one jackpot;
issuing a credit, tokens, currency or an award to the one or more players accepting the partial buy-out offer;
completing the remainder of the defined number of legs to finish the multi-outcome wagering event;
determining if any of the players have won the at least one jackpot or portion thereof;
notifying the players that have won the jackpot or portion thereof; and
issuing a credit, tokens, currency or an award to the players that have won the jackpot or portion thereof.
1. The method of claim 1, wherein the multi-outcome wagering event comprises one or more wagering events, the defined number of legs comprises one or more legs, and wherein each of the defined number of legs comprises at least one of an entire wagering event, a partial wagering event, a divisible component of a wagering event, multiple independent wagering events occurring sequentially or concurrently, and a compilation of related wagering events, wherein the one or more wagering events comprises one or more selected from the group consisting of sporting events, lotteries, real games and virtual games, and wherein the wager comprises a potential outcome for each of the legs.
1. The method of claim 2, wherein the wager is one or more of selectable by being handpicked by the player, provided electronically on request of the player through communication between the one or more wagering input devices and the system controller, provided via a random number generator associated with the system controller, a quick pick or a smart pick.
1. The method of claim 2, wherein the games comprise one or more selected from the group consisting of slot machines, keno, poker, video games and racing.
1. The method of claim 1, wherein the partial buy-out offer is initiated on behalf of at least one of a third party and a player, and when a partial buy-out offer is accepted, the third party becomes eligible for winning at least a portion of the jackpot.
1. The method of claim 1, wherein the system controller is further programmed to award the jackpot, or any fractional portion thereof, upon the completion of the multi-outcome event pool.
1. The method of claim 1, wherein the multi-outcome wagering event comprises one or more virtual games, said method further comprising:
initiating the partial buy-out offer prior to completion of the one or more virtual games, but after an outcome of the one or more virtual games has been determined,
said partial buy-out offer including a price that is at least partially based on random-number generated probabilities.
1. The method of claim 1, wherein one or more interim jackpots are awarded where a particular number of the defined number of legs are completed prior to completion of the multi-outcome wagering event.
1. The method of claim 1, further comprising awarding at least one consolation jackpot where a consolation scenario is won.
1. The method of claim 9, wherein said consolation scenario comprising at least one of winning a predetermined subset of the defined number of legs and selecting a predetermined number of non-winning legs that each finishes within a predetermined position of a corresponding winning leg.
1. The method of claim 8, wherein there is a span of time before at least one final leg of the multi-outcome event is completed, and the at least one final leg is completed in a live or pre-recorded event attended by the players eligible to win a jackpot, a portion thereof, or a bonus prize.
1. The method of claim 11, further comprising initiating a buy-back offer, prior to the at least one final leg, to at least one player eligible to win the jackpot, the portion thereof, or the bonus, said buy-back offer being for a portion of an entirety of said jackpot, said portion thereof, or said bonus prize.
1. The method of claim 11, wherein the live or pre-recorded event is a reality show that is broadcast over a mass communications medium.
1. The method of claim 13, wherein the mass communications medium comprises at least one of television, satellite, cable, the Internet, mobile communication device, social media and radio.
1. The method of claim 1, wherein the one or more wagering input devices are adapted for generating a wager for a player reflecting one or more predicted outcomes of the multi-outcome wagering event.
1. The method of claim 1, wherein ownership or partial ownership of the wager may be changed from player to player at any time before or during the course of the multi-outcome wagering event.
1. The method of claim 15, wherein the system controller is further adapted for identifying the ownership status of the wager.
1. The method of claim 1, wherein the wager further comprises a list that is at least one of printed on a ticket, printed on a voucher, and displayed via the one or more wagering input devices.
1. The method of claim 1, wherein the one or more wagering devices comprise at least one of a wagering terminal, a wagering workstation, a personal computer, a smart phone, a tablet computing device, a gaming machine, a slot machine, and a lottery machine.
1. The method of claim 1, wherein the multi-outcome wagering event comprises a pool or is progressive, wherein said pool is at least one of fixed, variable and guaranteed.
1. The method of claim 1, wherein where there are no winners of at least one jackpot, said at least one jackpot is rolled into another multi-outcome wagering event or at least partially awarded to an operator of the multi-outcome wagering event.
1. The method of claim 1, wherein at least one of the one or more jackpots comprises a monetary award provided to the player in the form of at least one of currency, tokens and credit.
1. The method of claim 1, wherein the one or more jackpots, the portion thereof, or the award comprises one or more selected from the group consisting of monetary awards, nonmonetary awards, a prize, a payment, a designated currency, virtual currency, tokens, credits, coupons, services, personal property, real property, virtual property, assets, investments, negotiable instruments, commodities, food, lodging, entertainment, alleviation of obligations, gaming opportunities and wager enhancement.
1. The method of claim 1, wherein the multi-outcome wagering event comprises at least one of a bonus leg and a consolation leg,
wherein designated players who have one a defined number of legs qualify for the bonus leg and designated players who have lost a defined number of legs qualify for the consolation leg, and
wherein correctly predicting an outcome of the bonus leg qualifies at least one designated player for at least a portion of a bonus prize and correctly predicting an outcome of the consolation leg qualifies at least one designated player for at least a portion of a consolation
prize.
1. A wagering system including one or more wagering input devices for allowing the placement of a wager on a multi-outcome wagering event comprising one or more wagering events, the wagering system comprising:
a system controller configured to communicate with the one or more wagering input devices, said system controller configured to:
initiate the multi-outcome wagering event for one or more players, said multi-outcome wagering event comprised of a defined number of legs comprising one or more legs, wherein one or more jackpots, or a portion thereof, is awarded at least where a particular number of the defined number of legs are completed;
receive a wager via the one or more wagering input devices in response to input from a player desiring to participate in the multi-outcome wagering event, wherein the wager coincides with each of the defined number of legs;
generate a record reflecting the wager associated with the player at the system controller;
receive input of an outcome of each of the defined number of legs corresponding to the multi-outcome wager event;
generate and cause display via the one or more wagering input devices the outcome received of each of the defined number of legs to a player;
identify one or more players eligible to win-each of the defined number of legs based on the wager from among players participating in the multi-outcome wagering event,
determine any players eligible to win at least one jackpot or a portion thereof based on the potential outcome of each of the defined number of legs in comparison against the record reflecting the wager from among players participating in the multi-outcome wagering event, wherein players eligible to win at least one leg remain eligible to win at least one jackpot or a portion thereof;
initiate and cause display of at least partial buy-out offer via the one or more wagering input devices to any number of the one or more players that remain eligible to win at least one jackpot, or portion thereof, for at least a portion of said at least one jackpot, said partial buy-out offer being initiated before the multi-outcome wagering event has been completed;
receive an acceptance of the partial buy-out offer via the one or more wagering input devices in response to input from a particular number of the one or more players eligible to win the at least one jackpot or portion thereof that have accepted the partial buy-out offer, wherein each of the one or more players not accepting the partial buy-out offer will remain eligible to win the at least one jackpot, and wherein each of the one or more players accepting a partial buy-out offer remains eligible to win at least a portion of the at least one jackpot;
issue a credit, tokens, currency or an award to the one or more players accepting the partial buy-out offer;
complete the remainder of the defined number of legs to finish the multi-outcome wagering event;
determine if any of the players have won the jackpot or portion thereof;
notify the players that have won the jackpot or portion thereof; and
issue a credit, tokens, currency or an award to the players that have won the jackpot or portion thereof.
1. The wagering system of claim 25, wherein the multi-outcome wagering event comprises a plurality of legs, each comprising at least one of an entire sporting event, a partial sporting event, a divisible component of a sporting event, multiple independent sporting events occurring sequentially or concurrently, and a compilation of related sporting events.
1. The wagering system of claim 25, wherein the multi-outcome wagering event comprises at least one of a bonus leg and a consolation leg,
wherein designated players who have won a defined number of legs qualify for the bonus leg and designated players who have lost a defined number of legs qualify for the consolation leg, and
wherein correctly predicting an outcome of the bonus leg qualifies at least one designated player for at least a portion of a bonus prize and correctly predicting an outcome of the consolation leg qualifies at least one designated player for at least a portion of a consolation prize.
1. The wagering system of claim 25, wherein the wager comprises at least one of an accumulator, parlay, fixed odds single or fixed odds multiple wager comprising at least one or more combinations of at least a portion of the defined number of legs, wherein the one or more combinations are selectable by at least one of a player, a third party, and the wagering system, and wherein at any time before all legs included in the wager have been completed, at least one partial buy-out offer is initiated to any number of the one or more players remaining eligible to win at least one of a jackpot, a portion of a jackpot or an award.
1. The wagering system of claim 25, wherein the one or more jackpots, the portion thereof, or the award comprises one or more selected from the group consisting of monetary awards, nonmonetary awards, a prize, a payment, a designated currency, virtual currency, tokens, credits, coupons, services, personal property, real property, virtual property, assets, investments, negotiable instruments, commodities, food, lodging, entertainment, alleviation of obligations, gaming opportunities and wager enhancement.
1. The wagering system of claim 25 wherein the wagering event and wager comprises one or more of fixed odds single wagers, multiple wagers, full cover wagers, full cover wagers with singles, 'Any to Come' (ATC) or 'if cash' wagers, specialty wagers, forecasts, fixed, variable, guaranteed, parimutuel wagering, fixed-odds wagering, accumulator or parlay wagering, fixed odds, a pool, progressive, fixed pool, variable pool or guaranteed pool.
1. The wagering system of claim 25, further comprising a cash out option, the system controller further configured to:
receive a selection of the cash out option from any of the one or more players that desire to fully or partially end the wager, wherein the selection of the cash out option from any of the one or more players is provided via one or more of the one or more wagering input devices, a hand held device, a mobile device, a wireless device, a computing system, a smart phone, a telephone, a tablet computer, text messaging, a PDA, an interactive television, email, Internet browser or a cashier;
wherein any of the one or more players selecting the cash out option to fully end the wager no longer participates in the multi-outcome wagering event, and any of the one or more players selecting the cash out option to partially end the wager continues to participate in the multi-outcome wagering event; and
issue to the one or more players that selected the cash out option one or more of cash, tickets or credit slips redeemable by the player, funding of a player's electronically recordable identification card or online account, or an award.
1. The method of claim 1 wherein the wagering event and wager comprises one or more of fixed odds single wagers, multiple wagers, full cover wagers, full cover wagers with singles, 'Any to Come' (ATC) or 'if cash' wagers, specialty wagers, forecasts, fixed, variable, guaranteed, parimutuel wagering, fixed-odds wagering, accumulator or parlay wagering, fixed odds, a pool, progressive, fixed pool, variable pool or guaranteed pool.
1. The method of claim 1, further comprising a cash out option, the system controller further configured to:
receive a selection of the cash out option from any of the one or more players that desire to fully or partially end the wager, wherein the selection of the cash out option from any of the one or more players is provided via one or more of the one or more wagering input devices, a hand held device, a mobile device, a wireless device, a computing system, a smart phone, a telephone, a tablet computer, text messaging, a PDA, an interactive television, email, Internet browser or a cashier;
wherein any of the one or more players selecting the cash out option to fully end the wager no longer participates in the multi-outcome wagering event, and any of the one or more players selecting the cash out option to partially end the wager continues to participate in the multi-outcome wagering event; and
issue to the one or more players that selected the cash out option one or more of cash, tickets or credit slips redeemable by the player, funding of a player's electronically recordable identification card or online account, or an award.
1. A wagering system including one or more wagering input devices for allowing the placement of a wager on one or more wagering events, the wagering system comprising:
a system controller configured to communicate with the one or more wagering input devices, said system controller configured to:
initiate the one or more wagering events for one or more players;
receive a wager via the one or more wagering input devices in response to input from a player desiring to participate in the one or more wagering events;
generate a record reflecting the wager associated with the player at the system controller;
receive input of an outcome of the one or more wagering events;
generate and cause display via the one or more wagering input devices the outcome of the one or more wagering events to a player;
identify one or more players eligible to win the one or more wagering events based on the wager from among players participating in the one or more wagering events;
determine any winners of the one or more wagering events based on the outcome of one or more wagering events in comparison against the record reflecting the wager from among players participating in the one or more wagering events;
initiate and cause display of both of a buy-out offer and a partial buy-out offer via the one or more wagering input devices to any number of the one or more players eligible to win before the one or more wagering events have been completed, wherein one or more additional buy-out offers or partial buy-out offers may be initiated and displayed via the one or more wagering input devices to any number of the one or more players that have not accepted a buy-out offer or a partial buy-out offer;
receive any acceptances of the buy-out offer or partial buy-out offer via the one or more wagering input devices in response to input from a particular number of the one or more players that have accepted the buy-out offer or partial buy-out offer; and
issue a credit, tokens, currency or an award to the one or more players accepting the buy-out offer or partial buy-out offer.
1. The wagering system of claim 34, wherein the one or more players are eligible to win an award and the system controller is further configured to determine if any of the one or more players have won the award.
1. The wagering system of claim 34, wherein the award comprises one or more selected from the group consisting of monetary awards, nonmonetary awards, a prize, a payment, a designated currency, virtual currency, tokens, credits, coupons, services, personal property, real property, virtual property, assets, investments, negotiable instruments, commodities, food, lodging, entertainment, alleviation of obligations, gaming opportunities and wager enhancement.
1. The wagering system of claim 34, wherein the wagering event comprises at least one of an entire wagering event, a partial wagering event, a divisible component of a wagering event, multiple independent wagering events occurring sequentially or concurrently, and a compilation of related wagering events, wherein the wagering event comprises one or more selected from the group consisting of sporting events, lotteries, real games, virtual games, live events, pre-recorded events, online events, broadcast events, slot machines, card games, keno, video games and racing.
1. The wagering system of claim 34 wherein the wagering event and wager comprises one or more of fixed odds single wagers, multiple wagers, full cover wagers, full cover wagers with singles, 'Any to Come' (ATC) or 'if cash' wagers, specialty wagers, forecasts, fixed, variable, guaranteed, parimutuel wagering, fixed-odds wagering, accumulator or parlay wagering, fixed odds, a pool, progressive, fixed pool, variable pool or guaranteed pool.
1. The wagering system of claim 34, wherein upon acceptance of the buy-out offer or partial buy-out offer by a player, the system further comprises at least one or more of:
transferring an entitlement of the player to at least one third party or another player, so that the at least one third party or another player becomes eligible to win the at least one jackpot or portion thereof;
transferring ownership or partial ownership of the player, in at least a portion of the player's wager, to at least one third party or another player, so that the at least one third party or another player obtains ownership or partial ownership and becomes eligible to win the at least one jackpot or portion thereof;
relinquishing rights of the player, in at least a portion of the player's wager corresponding to the buy-out offer or partial buy-out offer, before the wagering event has been completed; and
initiating and causing display of at least a portion of the player's wager corresponding to the accepted buy-out offer or partial buy-out offer for at least one of bidding and selection by one or more third parties.
1. The wagering system of claim 34, further comprising a cash out option, the system controller further configured to:
receive a selection of the cash out option from any of the one or more players that desire to fully or partially end the wager, wherein the selection of the cash out option from any of the one or more players is provided via one or more of the one or more wagering input devices, a hand held device, a mobile device, a wireless device, a computing system, a smart phone, a telephone, a tablet computer, text messaging, a PDA, an interactive television, email, Internet browser or a cashier;
wherein any of the one or more players selecting the cash out option to fully end the wager no longer participates in the one or more wagering events, and any of the one or more players selecting the cash out option to partially end the wager continues to participate in the one or more wagering events; and
issue to the one or more players that selected the cash out option one or more of cash, tickets or credit slips redeemable by the player, funding of a player's electronically recordable identification card or online account, or an award.
1. The wagering system of claim 34, wherein the buy-out offer comprises a cash in offer or a cash out offer, and wherein the partial buy-out offer comprises a partial cash in offer or a partial cash out offer.
1. The wagering system of claim 34, wherein the buy-out offer comprises a cash in offer or a cash out offer, and wherein the partial buy-out offer comprises a partial cash in offer or a partial cash out offer.
1. The wagering system of claim 34, wherein the buy-out offer and partial buy-out offer comprises a full cash out on a single.
1. The wagering system of claim 34, wherein the buy-out offer and partial buy-out offer comprises a partial cash out on a single.
1. The wagering system of claim 34, wherein the buy-out offer and partial buy-out offer comprises a full cash out on a multiple, accumulator, parlay or pool.
1. The wagering system of claim 34, wherein the buy-out offer and partial buy-out offer comprises a partial cash out on a multiple, accumulator, parlay or pool.
1. The method of claim 1, further comprising:
initiating and causing display of at least one buy-out offer-via the one or more wagering input devices to any number of the one or more players that are eligible to win at least one jackpot for at least a portion of said at least one jackpot, said buy-out offer being initiated at any time before the multi-outcome wagering event has been completed;
receiving an acceptance of the buy-out offer-via the one or more wagering input devices in response to input from a particular number of the one or more players eligible to win the at least one jackpot or portion thereof that have accepted the buy-out offer; wherein each of the one or more players accepting the buy-out offer will no longer be eligible to exclusively win the at least one jackpot, and wherein each of the one or more players not accepting the buy-out offer will remain eligible to win the at least one jackpot.
1. The method of claim 47, wherein accepting a partial buy-out offer comprises a player accepting less than the buy-out offer amount, said acceptance resulting in the player remaining eligible to win at least a portion of at least one jackpot.
1. The method of claim 47, further comprising initiating a bidding process among a designated number of players interested in accepting at least one of a buy-out offer and partial buy-out offer, and closing the bidding process after a certain span of time or after a certain number of the buy-out and partial buy-out offers have been accepted.
1. The method of claim 47, wherein upon acceptance of the buy-out offer or partial buy-out offer by a player, the method further comprises at least one or more of:
transferring an entitlement of the player to at least one third party or another player, so that the at least one third party or another player becomes eligible to win the at least one jackpot or portion thereof;
transferring ownership or partial ownership of the player, in at least a portion of the player's wager, to at least one third party or another player, so that the at least one third party or another player obtains ownership or partial ownership and becomes eligible to win the at least one jackpot or portion thereof;
relinquishing rights of the player, in at least a portion of the player's wager corresponding to the buy-out offer or partial buy-out offer, before the multi-outcome wagering event has been completed; and
initiating and causing display of at least a portion of the player's wager corresponding to the accepted buy-out offer or partial buy-out offer for at least one of bidding and selection by one or more third parties.
1. The method of claim 47, wherein the buy-out offer comprises a cash in offer or a cash out offer, and wherein the partial buy-out offer comprises a partial cash in offer or a partial cash out offer.
1. The method of claim 47, wherein the buy-out offer and partial buy-out offer comprises a full cash out on a single.
1. The method of claim 47, wherein the buy-out offer and partial buy-out offer comprises a partial cash out on a single.
1. The method of claim 47, wherein the buy-out offer and partial buy-out offer comprises a full cash out on a multiple, accumulator, parlay or pool.
1. The method of claim 47, wherein the buy-out offer and partial buy-out offer comprises a partial cash out on a multiple, accumulator, parlay or pool.
1. The wagering system of claim 25, wherein the system controller is further configured to:
initiate and cause display of at least one buy-out offer-via the one or more wagering input devices to any number of the one or more players that remain eligible to win at least one jackpot, or portion thereof, for at least a portion of said at least one jackpot,
receive an acceptance of the buy-out offer-via the one or more wagering input devices in response to input from a particular number of the one or more players eligible to win the at least one jackpot or portion thereof that have accepted the buy-out offer; wherein each of the one or more players accepting the buy-out offer will no longer be eligible to exclusively win the at least one jackpot, wherein each of the one or more players not accepting the buy-out offer will remain eligible to win the at least one jackpot.
1. The wagering system of claim 56, wherein the system controller is further configured to:
initiate one or more buy-out offers or partial buy-out offers for any combination of the plurality of legs at any time prior to completion of the multi-outcome wagering event; and
receive an acceptance of said one or more buy-out offers or partial buy-out offers.
1. The wagering system of claim 56, wherein upon acceptance of the buy-out offer or partial buy-out offer by a player, the system controller is further configured for at least one or more of:
transferring an entitlement of the player to at least one third party or another player, so that the at least one third party or another player becomes eligible to win the at least one jackpot or portion thereof;
transferring ownership or partial ownership of the player, in at least a portion of the player's wager, to at least one third party or another player, so that the at least one third party or another player obtains ownership or partial ownership and becomes eligible to win the at least one jackpot or portion thereof;
relinquishing rights of the player, in at least a portion of the player's wager corresponding to the buy-out offer or partial buy-out offer, before the multi-outcome wagering event has been completed; and
initiating and causing display of at least a portion of the player's wager corresponding to the accepted buy-out offer or partial buy-out offer for at least one of bidding and selection by one or more third parties.
1. The wagering system of claim 56, wherein the buy-out offer comprises a cash in offer or a cash out offer, and wherein the partial buy-out offer comprises a partial cash in offer or a partial cash out offer.
1. The wagering system of claim 56, wherein the buy-out offer and partial buy-out offer comprises a full cash out on a single.
1. The wagering system of claim 56, wherein the buy-out offer and partial buy-out offer comprises a partial cash out on a single.
1. The wagering system of claim 56, wherein the buy-out offer and partial buy-out offer comprises a full cash out on a multiple, accumulator, parlay or pool.
1. The wagering system of claim 56, wherein the buy-out offer and partial buy-out offer comprises a partial cash out on a multiple, accumulator, parlay or pool.
Annex B
After a relatively lengthy consideration of the applicable law in the Aristocrat case, the delegate stated the following 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.”