Svetko Lisica - [2013] APO 44

IP AUSTRALIA
AUSTRALIAN PATENT OFFICE
Svetko Lisica [2013] APO 44

Patent Application: 2012200955

Title:Universal Intonation System For Music, The Absolute and The Beyond

Patent Applicant:  Svetko Lisica
Delegate:  R Subbarayan
Decision Date:  1 August 2013
Hearing Date:  Written submissions filed on 8 April 2013
Catchwords:  PATENTS – examiner objection – theory of music – transformation of partials and harmonics of natural harmonic series – whether a manner of manufacture – mere intellectual information - computer merely means to implement mathematical transformation - application refused

Representation: Patent applicant: Mr Svetko Lisica

IP AUSTRALIA
AUSTRALIAN PATENT OFFICE
Patent Application: 2012200955

Title:Universal Intonation System For Music, The Absolute and The Beyond

Patent Applicant: Svetko Lisica
Date of Decision: 1 August 2013
DECISION
Patent application 2012200955 is refused pursuant to subsection 49(2) of the Act.
REASONS FOR DECISION
Background

Application 2012200955 in the name of Svetko Lisica was filed on 17 February 2012 and claims priority from provisional application 2011903465 filed on 21 February 2011 and also from PCT application PCT/AU2011/000257 (AU 2011360137) filed on 15 March 2011. Although this earlier PCT application has since been published, no international search report was issued on this application on the basis that the subject matter of that application related to scientific theories.
The applicant is self-represented and has not used the services of a patent attorney. The applicant requested expedited examination of the application and a first examination report raising substantive objections issued on 7 December 2012. The applicant responded on 12 December 2012 by requesting to be heard in relation to the examiner’s objections. On 3 January 2013, the Office wrote to the applicant stating that it is possible to deal with the issues by way of written submissions and invited him to file written submissions within one month. The letter also advised that the submissions should address certain points. The applicant responded in a fairly lengthy letter dated 28 February 2013 in which he questioned the conduct and legality of some of the Office’s actions in relation to both the substance of the examiner’s objections and to some of the procedural aspects that had been followed. On 8 April 2013, the applicant proposed amendments including a new set of claims. These amendments have not been the subject of examination but I will consider them in this written decision.
Examiner’s objections
The examination report issued on 7 December 2012 included two substantive objections which read as follows:
1.The application is not for a manner of manufacture within the meaning of paragraph 18(1)(a) of the Patents Act 1990 because it is directed to a music theory (it is considered that “Mr Svetko Lisica’s Scientific Theory” (hereinafter “the Theory” or “your Theory”) is a music theory) which is in the realms of the fine arts. Fine art applications are not patentable subject matter under the Australian Patents Act 1990.
I have read your claims and determined that there is no subject matter in your application that could, properly claimed, be considered a manner of manufacture. Regrettably this means that your application is not patentable. Because of this I have not conducted a search to determine if your invention is new or investigated the possibility of other deficiencies, particularly with regard to the setting out of the claims.
Owing to the fact that your application appears to be directed towards a music theory, the following decision applies to your application. Refer to pages 247 to 248 of “The Illustrated Official Journal (Patents), Reports of Patent, Design, and Trade Mark Cases [Vol. XXXVII], Nov. 8, 1920”, In the Matter of an Application for a Patent by C., “…[t]he invention relates to musical notation and consists in distinguishing between the sharps, flats, and naturals by differences in the colours, shapes or designs of the characters on the written or printed sheet. This does not appear to be a manner of manufacture …”. (A copy of the above mentioned pages is attached to this report for your reference.)
Moreover, the details of the Theory are not disclosed in the description. It is noted that this application claims priority of the provisional application no. 2011200716 that may describe the details of the Theory.
2.Notwithstanding the above, there is no useable claim clearly defining the scope of the monopoly you want.
I would normally carry out a search of our library of earlier patent documents to evaluate the newness of the claims of your application. However, you have no suitable claim on which I can base a search and I cannot find a properly described invention in the description. Hence, I also cannot do a meaningful search.
Regarding the wording of the text under the heading "THE CLAIMS DEFINING THE INVENTION ARE AS FOLLOWS:", although you refer to these as claims, it appears to be more appropriate for a description rather than a claim of the invention that must define the scope of the monopoly sought.
A patent claim cannot be merely a statement of the advantages or virtues of the invention. A patent claim serves both a legal and a technical function, it must be:
Claim 1 needs to define all the essential features of your invention. By “essential” I mean those integers that must be in your invention to make it work as you intended. You may also include optional aspects or preferred forms in claim 1, but it is usual to put these in further claims which refer back to claim 1.
In summary, you must draft your specification in two parts. The first part describes your invention and the second part claims your invention. In writing your claims you should include features which differentiate your invention from prior art.
The following URLs may be useful for your references:
1. Patents Guide
Best Practice Guide for Filling a Patent Application in Austalia
>
In line with these objections, the examiner reserved further opinion under Subsection 45(1)(c) ofthe Patents Act 1990.
The Specification
The title of the invention reads “Universal intonation system for music, the absolute and the beyond”.
The specification further states that present application will further expound upon the scientific theories found in the provisional application 2011903465.
Some of the opening passages in the description read as follows:
“This auscultative method for the Natural Harmonic Series (NHS) is an Invention where the Inventor, Author and Composer, Mr Svetko Lisica is able to stake claims that assert one's possession and legal rights to several streams in patentability, namely for Computer-Related Inventions where the Programmatic Specificity herein is able to be industrially applied, that is also operational for a Business Method Invention and a Printed Matter Invention that gains status and protection for the critical, meaningful Intellectual Property data and process systemically required for the essential combination of traits and qualities, the distinguishing identity, resource and individual nature in the unique artificial intelligence for the computer software programme.”
“……this auscultative method and its inventive creations liberate significant developments and substantial innovations for the NHS, formally introducing Programmatic Specificity for an innovative, new Musical Instrument, Composition Engine and a Sonic Biodynamical Brain Entrainment Bridge for Binaural Beats. It's a collection of sonic recipes, demonstrable by the superior quality in concentration and deliberation for harmonious subject matter, from this Invention's engineering solutions and technical innovations for the NHS,…..”
” As a consequence, this auscultative method for the NHS creates a new sequence in frequency, resonance and Scale Generation from its technical innovations….”.
“……it unravels the Natural Harmonic Series' course of actions and per se, is the first comprehensive mathematical explanation for the NHS, initiating the technical features that launch this auscultative method's creations for a useful art that is exemplified by a complete lack of anomalous harmonic content.”
“Each and every constituent harmonic pitch partial in the NHS, via this Invention's creations, symmetry and technical features, is accurately stable for the smooth functioning that is required by the NHS' subject matter.”
“The nature of the invention specified in this complete patent application relates to soundwave scales and an intonation system based on the NHS, where the Invention has particular applications that inventively create soundwave scales for the intonation system from the NHS in a new and novel method of manufacture, enabling for a plurality of soundwaves in perfect pitch rational number ratios that form scalar generations, musical compositions and sonic resonances.”
The description then has what appears to be a consistory statement as follows:
“….in one aspect this Invention resides broadly in the scale and harmonics system, the NHSincluding:
a foundation pitch designed as a Unisonant Fundamental 1/1;
a plurality of notes being octaves for the Unisonant Fundamental. Here, each octave's harmonic pitch partial fundaments being, represented as a rational number ratio, for example 1/1 - 2/1, 2/1 - 4/2, 4/2 - 8/4 and so on and so forth in the NHS' pattern of octave events for the Unisonant Fundamental 1/1;
each harmonic pitch partial in the NHS, is able to create their own specific, separate and distinct octave regions, for example 3/2 - 6/4, 5/4 - 10/8, 60/32 - 120/64, etc.”
This is then followed by around 100 pages of what appears to be an explanation of what Mr Lisica refers to as the “programmatic specificity for this invention” which is apparently the computer program that is contained in four .scm files within the “Impromptu” Integrated Development Environment and one Microsoft Word .docx file. It describes various mathematical steps for transforming the harmonic pitch partials of the NHS.
The description ends with an 18 page attachment entitled “The Scale Generations from a Universal Intonation System” and this contains what appears to be examples of some of the new scales generated using the method of the alleged invention.
The specification then ends with 10 claims that read as follows:
1. An auscultative method that expounds upon the Natural Harmonics Series (NHS) and Mr Svetko Lisica's Scientific Theory for Music's decipherability and attunement, from the Invention's Programmatic Specificity in a soniferous or visual realm for a new, useful, innovative and original Composition Engine and via its computations, providing the compositional harmonic materials that are put in the states of being manifested by the Invention's unprecedented and original Musical Instrument and Sonic Biodynamical Brain Entrainment Bridge for Binaural Beats, into a stable unit of measure in exactitude for a tuning medium, herewith this Invention is the state or fact of existence, a practical Universal Intonation System that belongs with Music, The Absolute and The Beyond.
1. As claimed in Claim 1, for that part of the Invention, The Beyond, in relation for this Invention, the world outside the human beings perception for the faculty or sense by which sound is perceived, that crosses over into The Absolute, using Lissajous Figures, for an example as being one mode of carrying it into effect and made into the state of being manifested by the images collectively from this Invention's simple trigonometric math functions, in future versions for the Programmatic Specificity, where this visual language from the Composition Engine is perceived with the eyes for a concrete, tangible, physical and observable effect in the visual realm.
1. As claimed in Claim 1, a new, technically innovative, practical and useful Universal Intonation System that belongs with Music, The Absolute and The Beyond, invented, specified and defined by Mr Svetko Lisica.
1. As claimed in Claim 1, Programmatic Specificity for the Invention's new Composition Engine, Musical Instrument, a Sonic Biodynamical Brain Entrainment Bridge for Binaural Beats and a practical Universal Intonation System for Music, The Absolute and The Beyond.
1. As claimed in Claim 1, Programmatic Specificity for patentable subject matter in a Computer -Related Invention.
1. As claimed in Claim 1, an auscultative method for patentable subject matter in a Business Method Invention.
1. As claimed in Claim 1, a Printed Matter Invention, described by the Invention's file The-Scale-Generations.docx, that is derived from the patentable subject matter from Mr Svetko Lisica's Scientific Theory, auscultative method and Programmatic Specificity, whose computations are performed via the Composition Engine for a practical Universal Intonation System that belongs with Music, The Absolute and The Beyond.
1. As claimed in Claim 1, a viable and futuristic manner of manufacture from Mr Svetko Lisica's Programmatic Specificity and Intellectual Property, for a stand-alone Commodity, programmed by Embedded Software and Design, Implementation and Verification standards.
1. As claimed in Claim 1, a new, technically innovative, practical and useful Musical Instrument.
1. As claimed in Claim 1, a new, technically innovative, practical and useful Sonic Biodynamical Brain Entrainment Bridge for Binaural Beats.
On 9 April 2013, the applicant filed a new set of claims to replace the claims as filed. These claims are numbered from 11-17 and they are reproduced below. Please note that claim 11 runs to 10 pages and is therefore only reproduced in part.
11.A method that is carried out by a computational device that executes the operational steps of my Software. This method is of many parts, one being an auscultative method that requires the act of listening, and is a series of actions directed to achieving this result or condition, where these actions or processes of bringing sound into being, a group or combination of interrelated, interdependent, or interactive elements forming a collective unity for the soniferous, sonorous or sonic realms, is practically produced and transmitted via my Invention's Musical Instrument and Sonic Biodynamical Brain Entrainment Bridge For Binaural Beats, from my Invention's practical Scientific Theory, my Computer Software's operational steps and its Programmatic Specificity.
The operational steps of my Invention's Computer Software, and its Programmatic Specificity is executed by a computational device, namely from my Invention's Composition Engine, performing mathematical operations on data from the Natural Harmonics Series, according to programmed instructions in order to obtain the required harmonic information for the Musical Instrument's and the Sonic Biodynamical Brain Entrainment Bridge For Binaural Beats' Engineering and Design Plan for their Ultimate Production into the industrial and aural realms, from the Universal Intonation System For Music, The Absolute and The Beyond, that is the cause for the Musical Instrument's and the Sonic Biodynamical Brain Entrainment Bridge For Binaural Beats' existence, the circumstances that created my Inventions Musical Instrument and the Sonic Biodynamical Brain Entrainment Bridge For Binaural Beats, the natural actions or intended purposes for my Invention's Musical Instrument and the Sonic Biodynamical Brain Entrainment Bridge For Binaural Beats in a specific role, to operate or perform as specified, being also a practical tuning medium for a Communication Device that is my Invention's Musical Instrument and the Sonic Biodynamical Brain Entrainment Bridge For Binaural Beats.
As per my Specification, the operational steps of the software are as follows in sequential order.
(i) The First Stage in the Scale Generations
Create an Original Octave Regional Sector from each constituent harmonic pitch partial from within the Natural Harmonics Series (NHS). For an example is the 3/2 – 6/4 Original Octave Regional Sector in the NHS. This is the octave's harmonic material in its original form for this Original Octave Regional Sector that is derived from the NHS, and mathematically represented by the rational number ratios
6/4 (Perfect Fifth, Sesquialterum, Diapente)
5/4 (5-limit Major Third, Sesquiquartum)
4/2 (Octave, Diapason)
3/2 (Perfect Fifth, Sesquialterum, Diapente).
Calculate all the intervals for this Original Octave Regional Sector from the NHS that defines the intervals present between the harmonic pitch partials for this chosen, Original Octave Regional Sector from the NHS, and namely their Interval Recognitions.
6/4 (Perfect Fifth, Sesquialterum, Diapente)
6/5 (5-limit minor third, sesquiquintum) 6/4 – 5/4 = 6/5
5/4 (5-limit Major Third, Sesquiquartum)
5/4 (5-limit Major Third, Sesquiquartum) 5/4 – 4/2 (1/1) = 5/4
4/2 (Octave, Diapason)
4/3 (Perfect Fourth, Sesquitertium, Diatessaron) 4/2 – 3/2 = 4/3
3/2 (Perfect Fifth, Sesquialterum, Diapente)
Mathematically transform and transpose this Original Octave Regional Sector from the NHS, into a new computation in function for an octave regional sector result, that materially contains the new Pitch Perceptions, within this Math Transformed and Transposed Octave Regional Sector.
6/4 (Perfect Fifth, Sesquialterum, Diapente)        = 2/1 (Octave, Diapason)
5/4 (5-limit Major Third, Sesquiquartum)           = 5/3 (5-limit Major Sixth)
4/2 (Octave, Diapason)    = 4/3 (Perfect Fourth, Sesquitertium, Diatessaron)
3/2 (Perfect Fifth, Sesquialterum, Diapente)   = 1/1 (Tonic)
(Original Octave Regional Sector)  (Mathematically Transformed and
Transposed Sector)
Calculate all the Interval Recognitions between each constituent pitch partial for this
Mathematically Transformed and Transposed Octave Regional Sector, and corroborate that they're the same as those contained in the Original Octave Regional Sector selection from the NHS.
6/4 (Perfect Fifth, Sesquialterum, Diapente)
6/5 (5-limit minor third, sesquiquintum) 6/4 - 5/4 = 6/5
5/4 (5-limit Major Third, Sesquiquartum)
5/4 (5-limit Major Third, Sesquiquartum) 5/4 – 4/2 (1/1) = 5/4
4/2 (Octave, Diapason)
4/3 (Perfect Fourth, Sesquitertium, Diatessaron) 4/2 – 3/2 = 4/3
3/2 (Perfect Fifth, Sesquialterum, Diapente)
2/1 (Octave, Diapason)
6/5 (5-limit minor third, sesquiquintum) 2/1 – 5/3 = 6/5
5/3 (5-limit Major Sixth)
5/4 (5-limit Major Third, Sesquiquartum) 5/3 - 4/3 = 5/4
4/3 (Perfect Fourth, Sesquitertium, Diatessaron)
4/3 (Perfect Fourth, Sesquitertium, Diatessaron) 4/3 - 1/1 = 4/3
1/1 (Tonic)
The Interval Recognitions from the previous, Original Octave Regional Sector in the NHS and now this Mathematically Transformed and Transposed Octave Regional Sector are the same identities.
………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………
Thus, this process from stage (ii) may be repeated and followed on for further, consecutive stages, to be performed in like fashion for numerous divinations in Scale Generations, characterised by following the chronological sequence for the Next Scale Generation. These steps in aforementioned stages are able to be performed for every constituent harmonic pitch partial's Original Octave Regional Sector selection from the NHS. described therein my Invention's Specification.
(Please note that only Stage (i) is available from the Unisonant Fundamental 1/1).
12.A Claim for my Invention's Musical Instrument and Sonic Biodynamical Brain Entrainment Bridge For Binaural Beats. that in reality requires a synergy from all my Invention's individual components, via their Production's Design and Engineering Plan, namely my Invention's Universal Intonation System For Music, The Absolute and The Beyond, my Invention's Programmatic Specificity and the valid operational steps in my Computer Software Product, thereby providing for a practical language format in meaningful communications, understanding and intuition to begin as a result for and from the key mechanisms in my Invention's Musical Instrument and Sonic Biodynamical Brain Entrainment Bridge For Binaural Beats, an Ultimate in Production for their practical results into the soniferous, sonorous or sonic realms, for an industrial output in a manner of manufacture.
The Composer or the Musical Instrument's and the Sonic Biodynamical Brain Entrainment Bridge for Binaural Beats' Performer or Practitioner is now able to create Audio Genie Music, frequencies (Hz) and Binaural Beats from pure sine waves, for greater precision and accuracy in the representation of Music's Ideals. They're able to have complete control over and set the practical, functional and performable parameters such as pitch, volume, tempo, duration of tone, timbre, play melodies. arpeggios, chords, etc. for the aural realm via the Musical Instrument and Sonic Biodynamical Brain Entrainment Bridge for Binaural Beats, made manifest from the language format provided for this Communication Device, namely my Invention's Musical Instrument and the Sonic Biodynamical Brain Entrainment Bridge for Binaural Beats, and by their Ultimate Production Method for the aural realm via my Business Method's operational steps therein my Invention's Computer Software Product and its Programmatic Specificity, their Design and Engineering Guidelines and Standard in Production, for a practical result within the aural realm, as per my Invention's Specification.
13.A computer system that uses my Invention's Computer Software Product, being configured or programmed to carry out the operational steps from my Computer Software Product. My Invention's Computer Software Product's Research and Development, Testing, Quality and Assurance modi operandi is performed on an Apple Macintosh Company brand computer system and that is transformed by my Invention's synergy, into a specific use computer system, that processes data according to a set of instructions, for my Invention's Musical Instrument's and the Sonic Brain Entrainment Bridge For Binaural Beats' Productiveness and they're useful tools for the Music Composer to enable sound Music and Binaural Beat creations.
As per my Invention's Specification, the computer system found to be successful for a practical representation for my Invention's Communication Device is an Apple Macintosh Computer, a model 17" MacBook Pro, Mac OS X Lion Version 10.7.2, Processor 2.3 GHz, Intel Core i7 and Memory 1333 MHz DDR3, Intel HD Graphics 3000 512 MB.
Even so, for improved clock stability and better componentry for HIFI Audio, an Audio Interface is recommended, and also Audio Earphones that cover the whole pinna from the outer ear.
In addition to subsequent Research and Development, Testing, Quality and Assurance for my Invention's Computer Software Product on Apple's ensuing computer system models and operating system the modi operandi for my Invention's Musical Instrument and the Sonic Brain Entrainment Bridge For Binaural Beats is also proven to be a success.
14.As per my Invention's Specification, a Computer Software Product containing machine-readable instructions for execution by an electronic processor from a specific use computer system that processes data according to a set of instructions for Production, namely an Apple Macintosh Company brand computer system that is transformed via my Invention's synergy, from the operational steps within my Computer Software Product's Business Method and its Programmatic Specificity, to control or cause to function, to control the function of, or to produce a desired or intended effect, the state of being, to treat or process in a particular or specific way, that is for my Invention's Communication Device being a Musical Instrument and a Sonic Brain Entrainment Bridge For Binaural Beats, and their practical Computer Software Product launch capabilities, supplied by my industrial manner of manufacture and distribution for the particular specific use computer system, namely my Invention's Computer Software Product.
15.A medium on which my Computer Software Product is stored, and that is a piece of computer system equipment, such as a hard disk drive, in or on which data and instructions can be stored, that is from the specific use computer system that processes data according to a set of instructions for the Production in my Invention's practical Musical Instrument and a Sonic Brain Entrainment Bridge For Binaural Beats.
This storage medium contains databases that store my Invention's Computer Software Product, my Musical and Binaural Beat Composition Files, Printed Matter Software Files, and as per my Invention's Specification description.
16.A computational device when programmed with my Computer Software Product, that is a machine or tool used for a specific task, for calculations involving numbers or quantities, such as rational number ratios and their frequencies in a Hz value, from a specific use computer system that processes data according to a set of instructions from my Computer Software Product, to cause certain actions to be performed by a computer system as a replacement for human labour, to control or perform operations within a system by means of a computer, to process or store information by means of or in a computer, being as per my Invention's Specification for the Computer Software Programme and its Programmatic Specificity for the computational device, namely my Invention's Composition Engine, for the calculations and operational steps in my Computer Software Product that includes the calculations and operational steps for the subtraction and addition of rational number ratios, the calculations for the Greatest Common Denominator (GCD) for a rational number ratio, and an example being 6/4 = 3/2, calculations for the complimentary partnership and relationship ratio, and an example being is that 3/2 = 4/3, calculating frequency Hz values for the rational number ratios, and also the operational steps from within my Computer Software Product's Business Method, being in like fashion are the Pitch Perceptions, Interval Recognitions, the Spatial Dimensions in Harmonic Relationships (SDIHR), the Scale Generations' Developments and Constructions, the creation of the octave regional sectors such as the Original Octave Regional Sector, the Mathematically Transformed and Transposed Octave Regional Sector and the Complimentary Octave Regional Sector for the Mathematically Transformed and Transposed Octave Regional Sector that is for the processing of information for my Invention's real, practical and useful Musical Instrument and a Sonic Brain Entrainment Bridge For Binaural Beats existence therein the aural and visual realms, between an Input Device that is a means for receiving, which is capable of accepting input data from the NHS and my Scientific Theory for my Invention's Composition Engine, and an Output Device that is a means for communicating and is my Invention's Musical Instrument and a Sonic Brain Entrainment Bridge For Binaural Beats, an information content process where my Invention's input, storage and output means are entirely conventional, generating in consequence a Musical Instrument and a Sonic Brain Entrainment Bridge For Binaural Beats Production into the aural realm, being a Communication Device that is a useful tool for the Composer directed to Musical and Binaural Beat compositions, and is described within my Invention's Specification.
17.All viable, real or futuristic manner of manufacture for my Invention's Computer Software Product, its Production or Distribution for the aural and visual matter, as per my Invention's Specification description.
What is the invention?

The specification is so poorly drafted that I am struggling to clearly understand what is the subject matter of the invention as described. It is over 100 pages long and has clearly been drafted without professional assistance. Despite this, I will try and interpret the specification as best as I can.
While I interpret the first part of the title to mean a system for creating musical notes and specifically the relation of the pitch of the notes in relation to their key or harmony, I was initially left wondering what is meant by “the absolute and the beyond”. However when I read the description it became clear that this phrase refers to sound that is outside the normal audible frequency range for human beings.
The Natural Harmonic Series as I understand it is a series of frequencies or pitches produced "naturally" by vibrating systems whether they be a resonating column of air (such as in a Pipe Organ or Trumpet), a vibrating string (such as in a Violin or Piano) or a resonating solid item (such as a Bell or Xylophone). In a Harmonic Series there are an infinite number of notes emanating from a single, and lowest, note in the series. Practically, however, for a person to perceive such a series the frequencies of the notes must exist within the range of human hearing. Although naturally occurring in vibrating systems there is in fact a mathematical relationship between each of the notes within the Harmonic Series.
The lowest note is called the fundamental and is the frequency at which the entire wave vibrates. Overtones are other sinusoidal components present at frequencies above the fundamental. All of the frequency components that make up the total waveform, including the fundamental and the overtones, are called partials. Together they form the harmonic series.
Overtones which are perfect integer multiples of the fundamental are called harmonics. When an overtone is near to being harmonic, but not exact, it is sometimes called a harmonic partial, although they are often referred to simply as harmonics. Sometimes overtones are created that are not anywhere near a harmonic, and are just called partials or inharmonic overtones.
When the applicant was advised that the hearing would be based on written submissions, the applicant was also invited to address the following points in his submissions:
1. The examiner has stated that the application is directed to a theory of music. Do you agree with this assessment?
1. What do you consider to be the essence of your invention - is it a computer program, is it a computer file(s) (such as the four .scm files mentioned on page 20), is it a theory of music, or something else? You should state this as succinctly as possible.
1. Is the essence of the invention described in the specification - you should refer to the page and lines of the specification where it is described.
1. What is produced by use of the invention? The specification says at page 18 lines 13-15 that it is "pleasant sounding pitches and intervals, including chords, arpeggios, melodies, harmonic content and such like" – is this correct? If it is something else, you should state this as succinctly as possible.
1. Is the product of the use of the invention described in the specification - you should refer to the page and lines of the specification where it is described.
Unfortunately the applicant did not address any of the above in his written submission. He has merely made general assertions such as “My Invention’s Specification completely describes my Invention.....” and “Within the construction from my Invention’s Specification, the core elements from my Invention, that is to say, the essence of the Invention is easy to see or understand and readily apparent to the skilled addressee.”
After reading the entire specification a few times, it appears to me that the heart of the invention lies in some kind of transformation of the partials, harmonics and frequencies in the natural harmonic series or scale to produce musical notes that when played will sound better. This is also supported by the provisional specification which I may add is drafted in language that is much easier to comprehend.
The explanation of the programmatic specificity appears to describe various mathematical steps for making certain transformations to the partials in the NHS to thereby create new musical scales. However despite my best efforts to understand it I am unable to determine what exactly is this transformation. It appears to me that much of the new pitch partials that are mentioned in the description are still very much partials of the Natural Harmonic Series and I am therefore left wondering what transformation has taken place.
It is also clear from the description that Mr Lisica has written some computer program which when run on a computer can perform this transformation of the Natural Harmonic Series. This computer program is said to be contained in the five program files that are mentioned in the description.
In addition to the inventions “programmatic specificity” the description repeatedly refers to devices such as a new “musical instrument”, a “composition engine” and “sonic biodynamical brain entrainment bridge for binaural beats”. However it totally lacks any further elaboration of what are these devices and how do they function. I suspect that the “musical instrument” and the “composition engine” may be nothing more than a computer that has been programed to create and play music using the transformed scale and the “sonic biodynamical brain entrainment bridge for binaural beats” may be some kind of headphones to listen to the music, but I am in no way certain.
While there appear to be various aspects to the invention described, I would summarise the invention, as best as I can understand, as being a method of making some kind of mathematical transformation of the partials and harmonics of the NHS to generate some new musical scales.
Manner of manufacture
As mentioned earlier the examiner raised the objection that the claimed invention is not for a manner of manufacture as it is directed to a theory of music which is in the realm of fine arts.
Subsection 18(1)(a) is the pertinent part of the Patents Act in relation to manner of manufacture and reads as follows.
Subject to subsection (2), an invention is a patentable invention for the purposes of a standard patent if the invention, so far as claimed in any claim:
is a manner of manufacture within the meaning of section 6 of the Statute of Monopolies.
The High Court in National Research Development Corp (NRDC) v Commissioner of Patents [1959] 102 CLR 252, has provided a definitive statement of the law in this regard.
"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".
The NRDC (supra) decision has since been applied in numerous cases that have tested the distinction between the useful arts and the fine arts.
In CCOM Pty Ltd v Jiejing Pty Ltd [1994] FCA 1168, at [128], the Federal Court summarised the NRDC (supra) decision as a requirement for "a mode or manner of achieving an end result which is an artificially created state of affairs of utility in the field of economic endeavour".
In CCOM (supra) it was further stated that "intellectual conceptions become patentable only to the extent that they have been embodied in technical applications".
In Grant v Commissioner of Patents [2006] FCAFC 120, the Full Court laid the following requirement:
"Whether the method is properly the subject of letters patent is assessed by applying the principles that have been developed for determining whether a method is a manner of manufacture, irrespective of the area of activity in which the method is to be applied. It has long been accepted that "intellectual information", a mathematical algorithm, mere working directions and a scheme without effect are not patentable. It is necessary that there be some "useful product", some physical phenomenon or effect resulting from the working of a method for it to be properly the subject of letters patent".
They further referred to "any artificial state of affairs, in the sense of a concrete, tangible, physical, or observable effect".
In the recent decision in Research Affiliates LLC v Commissioner of Patents [2013] FCA 71, the Court held that the mere utilisation of a computer in an invention does not, in itself, confer patentability.
“In the case of computer programs, it is necessary to look to the application of the program to produce a practical and useful result, so that more than mere information is involved. The method of a claimed invention will not be patentable if it does not produce an artificial state of affairs, in the sense of a concrete, tangible, physical or observable effect. Even if there is not a physically observable end result, in the sense of a tangible product, a claimed invention that is a method may nevertheless be patentable if it applies the method in a physical device. In such a case, an artificial state of affairs is produced in the physical device by the claimed method. Thus, a physical effect, in the sense of a concrete effect or phenomenon or manifestation or transformation, is required. It is sufficient if there is a component that was physically affected or a change in state or information in part of a machine. They can be regarded as physical effects. However, if the claimed invention is a mere scheme, an abstract idea or mere information, it will not be patentable as there is no physical consequence (Grant v Commissioner of Patents [2006] FCAFC 120; (2006) 154 FCR 62 at 70-71).”
It appears that the applicant may have anticipated that the examiner may object that the invention is not a manner of manufacture, because the description is interspersed with a number of passages where the applicant has asserted that the invention is a manner of manufacture according to some of the principles that I have mentioned above. Some examples are as follows:
“The auscultative method from this Invention for the NHS, for a Universal Intonation System that belongs with Music, The Absolute and The Beyond in reality produces a product or result that is concrete, tangible, physical and an observable effect.”
“This inventive auscultative method's mode or manner achieves an end result, which is an artificially created state of affairs and a utility in the field of economic endeavour.”
“This Invention's Universal Intonation System that belongs with Music, The Absolute and The Beyond is not simply a mere idea, as prescribed and specified herein for patentable subject matter.”
“An invention whose inventive element resides solely in a discovery, idea, scientific theory or mathematical algorithm can still be patentable. This Invention's specification discloses the way of putting the idea/discovery/theory/scheme/plan into a practical effect and in addition a manner or mode of manufacture that is involves ingenuity and imagination for the production in an innovative, useful, ingenious, new, novel, practical Musical Instrument, Composition Engine and a Sonic Biodynamical Brain Entrainment Bridge for Binaural Beats in a Universal Intonation System that belongs with Music, The Absolute and The Beyond.”
In his written submissions filed on 9 April 2013, the applicant has made the following assertions as to why the claimed invention is a manner of manufacture.
“The context from my Invention's whole Specification is obviously within a computer-based environment, where my Computer Software Product's Business Method's Claims are to be understood in reality, where the fact in matter demonstrates a practical result being utilised in that created environment, and described within my Invention's Specification.”
“My Invention's transformation of its data, that represents pure sine wave sound frequencies created by rational number ratio calculations via my Invention's Composition Engine into the soniferous, sonorous or sonic realms via my Invention's Musical Instrument and a Sonic Biodynamical Brain Entrainment Bridge for Binaural Beats, is a practical application of mathematical algorithms in that it produces "a useful, concrete and tangible result", in the final form from a real and useful Musical Instrument and Sonic Biodynamical Brain Entrainment Bridge For Binaural Beats Productions, that is in actuality able to provide greater precision and accuracy for the representation of Music's Ideals, from my Invention's Computer Software Product's Business Method that is an industrial realm resident, thereby providing an "economic significance."
“My Computer Software Product's Business Method demonstrates and produces a useful, concrete and tangible result, namely in a Musical Instrument and a Sonic Biodynamical Brain Entrainment Bridge For Binaural Beats, via their Production Method.”
Unfortunately the lack of professional assistance in drafting the specification and claims and in providing meaningful submissions has not helped the applicant. His submissions are mere assertions without any substance or convincing arguments based on case law. Even with the amended claims filed on 9 April 2013 it is still difficult to establish with any certainty as to what is the subject matter of the claimed invention.
Whilst amended claim 1 clearly defines that the method is implemented by the use of a computer and there appears to be broad support in the specification as filed for this amendment, the authorities I have quoted above have made it clear that that alone is not sufficient and it is necessary to establish whether the application of the computer program produces a practical and useful result in a physical device.
As mentioned earlier, in my view the invention still very much lies in mathematically transforming and transposing pitch partials and intervals in the NHS to create what the applicant calls new next generation scales. Despite the reference to computer implementation in the claims, I consider what the applicant seeks to claim in this application is no more than a series of algorithms to transform certain data in the NHS to generate a modified scale for use in music. For example in the second paragraph of claim 1, it states “performing mathematical operations on data from the Natural Harmonics Series, according to programmed instructions in order to obtain the required harmonic information for the Musical Instrument's and the Sonic Biodynamical Brain Entrainment Bridge For Binaural Beats' Engineering and Design Plan”. All the other steps defined in amended claim 1 also relate to some kind of mathematical operation on the pitch intervals and pitch partials in the NHS. In my view the use of the computer is merely a means to perform these mathematical operations and is in no way central to the invention.
Even though some of the claims refer to a Musical Instrument or the Sonic Biodynamical Brain Entrainment Bridge, as I have mentioned earlier the specification and claims lack detail in relation to these alleged devices and therefore there is nothing to suggest that the transformed data created by the method of claim 1 is then used in some way to produce a physical or tangible effect in either of these components.
As noted in Research Affiliates (supra) “The mere use of a computer necessarily carries with it the writing of information into the computer’s memory”. What is required is an improvement in the operation of or effect of the use of the computer. There is nothing that would suggest that the method of the claimed invention results in the improved use of computers. In my view it only results in the generation of intellectual information in the form of a musical notation or scale that can be used in composing or playing music.
This is clearly not patentable subject matter in light of the authorities that I have quoted above. I am also guided by the court’s findings in In C’s application (1920) 37 RPC 247, where an application in respect of an invention comprising a musical notation, in which sharps and flats were printed in different colours and sizes compared to natural notes was refused. I can see no reason as to why the new music scale generated by transformation of the partials in the NHS even when generated by a computer program should be distinguished from a musical notation in which the notes are transformed into different colours or sizes.
In my view the requisite concrete, tangible, physical, or observable effect is not present in the claimed invention.
I therefore conclude that the claimed invention, as originally filed and as proposed to be amended, is not for a manner of manufacture.
Other matters
The examiner did not conduct a novelty or inventive step search of the claimed invention on the basis that there was no suitable claim on which he could base his search. I fully agree. While the amended claims are an improvement over the original claims, they are still extremely difficult to construe and search.
Further as discussed earlier the invention is so poorly described that in my view the application is unlikely to satisfy the requirements of Section 40(2) of the act which requires that a complete specification must describe the invention fully, including the best method known to the applicant of performing the invention.
However as I have already found that the claimed invention is not for a manner of manufacture, I do not see any reason to refer the application back to the examiner to reconsider these matters.
Conclusion
I have found that there are lawful grounds of objection to the present patent application. In particular I find that the claims are not directed to a manner of manufacture.
I further consider that the above objection could not be overcome by an allowable amendment.
Consequently, pursuant to subsection 49(2) of the Act, I refuse the application.
For the benefit of the applicant who is unrepresented, I would further point out that this is a final determination and that examination of the application has ended. However, pursuant to section 51 of the Act the applicant may appeal my decision to the Federal Court of Australia. Such an appeal is governed by the rules and procedure of the Court and must be filed within 21 days of the date of this decision, subject to any further time the Court may allow.
R Subbarayan
Delegate of the Commissioner of Patents