Technological Resources Pty Ltd - [2020] APO 42

IP AUSTRALIA

AUSTRALIAN PATENT OFFICE

Technological Resources Pty Ltd [2020] APO 42
Patent Application: 2018200494

Title: A system for, and a method of, controlling operation of a vehicle in a defined area

Patent Applicant: Technological Resources Pty Ltd

Delegate: Dr V. Z. Kolev

Decision Date: 15 September 2020

Hearing Date: 21 February 2020, in Sydney
Catchwords: PATENTS – hearing with respect to examiner’s objection – inventive step – controlling movement of a mine vehicle in a defined area of a mine site – perimeter defining an outer boundary of the defined area – autonomous mode of operation of the vehicle – operator controlled mode of operation of the vehicle – ceasing the autonomous mode when the vehicle approaches the perimeter – crossing the perimeter in operator controlled mode – the lack of inventive step objection not sustainable – allowability of the amendments proposed during examination uncertain – new documents available – examination of the application to continue
Representation: Counsel for the applicant: Mr Julian Cooke and Ms Catherine Bembrick
Patent attorney for the applicant: Mr Nicholas Lakatos of Cotters Patent & Trade Mark Attorneys

IP AUSTRALIA

AUSTRALIAN PATENT OFFICE

Patent Application: 2018200494

Title: A system for, and a method of, controlling operation of a vehicle in a defined area

Patent Applicant: Technological Resources Pty Ltd

Date of Decision: 15 September 2020

DECISION

I am not satisfied that the invention defined in any one of the claims as presently proposed to be amended does not involve an inventive step in light of prior art document US 2009/0326734 A1, referred to as D1 during examination.

I direct that the examination of the application continues. Under subregulation 13.4(3), in conjunction with subregulation 13.4(1), paragraph (g) of the Patents Regulations 1991, I direct that the period to gain acceptance of the patent request and complete specification in relation to the application is 6 (six) months from the date of this decision.

REASONS FOR DECISION

Throughout this decision, unless explicitly stated otherwise, any reference to an Act or a section, subsection, etc. of an Act refers to the Patents Act 1990 (the Act), and any reference to Regulations or a specific regulation refers to the Patents Regulations 1991 (the Regulations). In addition, any reference to the Commissioner refers to the Commissioner of Patents as per the Act.

BACKGROUND

The matter relates to patent application 2018200494 (the Application) in the name of Technological Resources Pty Ltd (the Applicant). The Application was filed on 22 January 2018 as a divisional application of patent application 2013227999 (now lapsed). The earliest claimed priority date is 13 September 2012. The request for examination was filed on 26 March 2018, and the Application was subject to five examination reports as detailed below.

Examination report No. 1 was issued on 06 November 2018. The report contained only one objection, namely that the claimed invention does not involve an inventive step in light of prior art document US 2009/0326734 A1 (D1). A response to that report was filed on 27 March 2019. No amendment was proposed at that time.

Examination report No. 2 was issued on 01 April 2019. In that report, the Examiner maintained the objection with respect to inventive step in light of document D1. A response to that report was filed on 11 April 2019 together with the first statement of proposed amendments, in which the Applicant proposed, under item 1, amended description and, under item 2, amended claims.

Examination report No. 3 was issued on 09 May 2019. In that report, the Examiner again maintained the objection with respect to inventive step in light of document D1. As per the Commissioner’s standard practice, before being issued, the report was reviewed by the Examiner’s supervisor. A response to that report was filed on 20 August 2019 together with the second statement of proposed amendments, in which, under item 3, the Applicant proposed a new set of amended claims.

Examination report No. 4 was issued on 10 September 2019. In that report, the Examiner further maintained the objection with respect to inventive step in light of document D1. As per the Commissioner’s standard practice, before being issued, the report was reviewed by the Supervising Examiner responsible for the examination section. In addition, that report contained the following text (original emphasis):

“My report below includes objections that are equivalent to objections raised in previous examination reports and objections raised in the examination of the related parent application which is directed to the same or essentially the same subject matter.
If a response overcoming the objections is not filed within one (1) month of the date of this report the Commissioner will consider whether to direct amendment of the application under section 107 or proceed to refuse the application under section 49(2) of the Act. If intending to proceed under either of these provisions the Commissioner will provide you with an opportunity to request to be heard on the matter.”

The response to that report was filed on 27 September 2019. No amendment was proposed at that time, however the Applicant stated (original emphasis):

“The applicant requests that the postponement of acceptance be lifted and that the application be allowed to proceed to acceptance.
If the Examiner should wish to maintain her position with respect to the outstanding objection, the Applicant requests a Hearing in respect of the application.”

Examination report No. 5 (the Last Report) was issued on 25 October 2019. As it was the case with the previous examination reports, the only objection in the Last Report was that the invention defined in each one of the claims does not involve an inventive step in light of document D1 under s 18(1)(b)(ii) and s 7(2) in conjunction with s 7(3)(a).

As per the Commissioner’s standard practice, before being issued, the report was reviewed by the Supervising Examiner responsible for the examination section.

On 30 October 2019, in response to the Last Report, the Applicant requested to be heard.

SUBMISSIONS AND EVIDENCE

On 14 February 2020, the Applicant filed a document titled “Applicant’s Written Submissions on Hearing of Patent Application No 2018200494” (the Applicant’s Summary or AS), together with the following evidence:

• A declaration by Mr Hume Saunders dated 14 February 2020 (Saunders), accompanied by exhibits HS-1 to HS-7.

Oral submissions were presented during the hearing on 21 February 2020.

APPLICABLE LAW AND SCOPE

On 15 April 2013, the Intellectual Property Laws Amendment (Raising the Bar) Act 2012 commenced which resulted in significant amendments to the Act and Regulations. The Application was filed on 22 January 2018, hence the amended provisions of the Act and Regulations apply to the examination of the Application and to the instant hearing decision.

This means that if I am satisfied, on the balance of probabilities, that a ground of objection exists, I can refuse the Application. However, I will only refuse the Application if I am also satisfied that providing the Applicant with an opportunity to amend will serve no useful purpose, for example, if I consider that any potential negative findings are not rectifiable by an allowable amendment.

The scope of the instant hearing and decision

Importantly, the instant hearing is with respect to the sole outstanding objection raised in the Last Report and is based on the specification of the Application (the Specification) as presently proposed to be amended, including the description as proposed to be amended on 11 April 2019 and the claims as proposed to be amended on 20 August 2019.

Therefore, following the principles of natural justice, my decision is limited only to matters covered by the instant hearing. Where I have made comments in relation to other examination matters, these comments serve only the purpose of facilitating further examination of the Application and, as such, should not be regarded as conclusive findings on those other matters.

The case law on inventive step

The test for obviousness was developed in Wellcome Foundation Ltd v VR Laboratories (Aust) Pty Ltd [1981] HCA 12; (1981) 148 CLR 262 (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.” (at [45], underlining added)

In considering the question of what constitutes “a matter of routine”, in Aktiebolaget Hassle v Alphapharm Pty Ltd [2002] HCA 59; (2002) 212 CLR 411; (2002) 194 ALR 485; (2002) 77 ALJR 398, it was stated at [53]:

“That way of approaching the matter has an affinity with the reformulation of the ‘Cripps question’ by Graham J in Olin Mathieson Chemical Corporation v Biorex Laboratories Ltd. This Court had been referred to Olin in the argument in Wellcome Foundation. Graham J had posed the question:
‘Would the notional research group at the relevant date, in all the circumstances, which include a knowledge of all the relevant prior art and of the facts of the nature and success of chlorpromazine, directly be led as a matter of course to try the -CF₃ substitution in the “2” position in place of the -Cl atom in chlorpromazine or in any other body which, apart from the -CF₃ substitution, has the other characteristics of the formula of claim 1, in the expectation that it might well produce a useful alternative to or better drug than chlorpromazine or a body useful for any other purpose?’ (emphasis added)

That approach should be accepted.” (original emphasis, reference(s) omitted)

In Lockwood Security Products Pty Ltd v Doric Products Pty Ltd (No 2) [2007] HCA 21; (2007) 235 ALR 202; 81 ALJR 1070, it was stated:

“In Alphapharm, this Court reiterated that ‘obvious’ means ‘very plain’, as stated by the English Court of Appeal in General Tire & Rubber Co v Firestone Tyre and Rubber Co Ltd. The majority in Alphapharm also confirmed that the question of whether an invention is obvious is a question of fact, that is, it is what was once a ‘jury question’. Broadly speaking, the question is not a question of what is obvious to a court. As well as being a question of fact, the question of determining whether a patent involves an inventive step is also ‘one of degree and often it is by no means easy’, because ingenuity is relative, depending as it does on relevant states of common general knowledge …
Further, as recognised in Beecham Group Ltd’s (Amoxycillin) Application, as a basic premise, obviousness and inventiveness are antitheses and the question is always ‘is the step taken over the prior art an “obvious step” or “an inventive step”’? An inventive step is often an issue ‘borne out by the evidence of the experts’. There is no distinction between obviousness and a lack of inventive step. A ‘scintilla of invention’ remains sufficient in Australian law to support the validity of a patent. In R D Werner Lockhart J stated that there must be ‘some difficulty overcome, some barrier crossed’. This is consonant with older authorities in the United Kingdom which recognised that some inventiveness was required to distinguish patentable advances over the prior art from advances which ‘any fool’ could devise. It also accords with the requirement in the United States that for an invention to be ‘non-obvious’ it must be ‘beyond the skill of the calling’.” (at [51]-[52], underlining added, reference(s) omitted)

The evidence related to the issue of inventive step

Following the above quoted case law, it is important to note that obviousness is a question of fact that is to be established by evidence. However, during the process of examination, the examiners are very seldom in possession of any evidence. Instead, in assessing inventive step, they rely (as it was done in the present case) on their technical expertise as per Commissioner of Patents v Emperor Sports Pty Ltd [2006] FCAFC 26, where the Full Court stated at [24]:

“The Commissioner is an administrative decision-maker equipped with technical expertise. Subject to the rules of natural justice both common law and statutory (see e.g. s 101(2)), he or she is entitled to make use of that expertise, and draw inferences that may be rationally drawn from technical knowledge, including how skilled persons of various descriptions may act in their respective occupations …”

To support its view that the claimed invention is not obvious, the Applicant provides evidence from Mr Saunders, who is an employee of the Applicant (see Saunders at [4] and [12]). Mr Saunders is “a mechanical and electrical engineer and the manager of Technological Resources Pty Limited’s Automation Platforms development team within Rio Tinto’s Growth & Innovation organisation” (Saunders at [1]). I consider that Mr Saunders is technically qualified to give evidence in these proceedings, however he is not a completely independent expert and his involvement in the relevant filed appears to have begun in November 2011 (see exhibit HS-2), i.e. less than a year before the earliest claimed priority date. These facts need to be taken into account when weighing Mr Saunders’s evidence.

THE SPECIFICATION

The field of the invention is described as:

“[02] This disclosure relates, generally, to the control of vehicles and, more particularly, to a system for, and a method of, controlling operation of a vehicle in a defined area. The disclosure has particular, but not necessarily exclusive, application to mobile mining machinery.”

In the section “Background”, it is explained that:

“[03] One of the key tasks in open cut mining is the preparation of a drill bench and the drilling of blast holes in the bench. Accurate drilling of the blast holes is important and can have repercussions through downstream mining and processing operations. The accuracy of drilling impacts scheduling, excavation, slope stability, material handling, beneficiation, ore loss and final product blending.”

Then, the description mentions that “[t]he applicant has carried out a drill automation program” which “have led to a number of advantages” (at [05]), and states that:

“[06] The applicant believes that further benefits can be obtained by controlling a plurality of drills simultaneously. Such an initiative presents other challenges to be overcome.”

The section ends with a clarification that “[f]or ease of reference, the disclosure will describe the application of the technology to its use on automated drills but the scope of the disclosure extends to other vehicles which are able to be controlled in an automated manner” (at [07]), and with the provision of some definitions:

“[07] … In this specification, unless the context clearly indicates otherwise, the term ‘vehicle’ is to be understood in a broad sense to include any suitable mobile machine. In addition, the term ‘automated’ (and related forms of the word) is to be understood to include an autonomous mode of operation and a remote control mode of operation.” (underlining and italic added)

The next section “Summary” contains what appears to be a number of consistory statements, some of which broadly corresponding to the claims. The detailed description of the exemplary embodiments is done with reference to the drawings, consisting of figures 1 to 8. Figure 1, reproduced below, illustrates an exemplary vehicle 12 (the top drawing) as well as one of the display screens 22 presented to the vehicle operator (the bottom drawing).

As already mentioned, the description of the invention is exemplified using the movement control of a mobile drill at a mine site:

“The vehicle may be a mobile drilling machine and may, particularly but not necessarily exclusively, be a drilling machine operable to drill blast holes in a bench of an open cut mine. The defined area may therefore be a surface area of the bench of the mine being drilled.” (at [10])

The reference numerals on figure 1 correspond to the following elements: 10 – a system for controlling operation of a vehicle (e.g. a mobile drill) in a defined area (e.g. the defined surface area of a drill bench of an open-cut or surface mine); 12 – the mobile drill; 14 – the defined surface area of the drill bench; 16 – a perimeter in the form of a virtual safety perimeter (VSP) defining a boundary of the defined surface area; 22 – a (remote) display screen (the system includes more than one) used by the mobile drill operator; 26 – a controller to which the mobile drill is responsive; 28 – a wheeled chassis of the mobile drill; 30 – a pair of tracks supporting the wheeled chassis; 31 – a deck of the wheeled chassis; 32 – a drill mast supported by the deck; 34 – a superstructure arranged on the deck; 38 – the blast holes to be drilled by the mobile drill; 40 – GPS devices which determine the position of the mobile drill in the defined surface area of the drill bench; 44 – a further GPS device in the form of a high precision GPS (HPGPS) device; 42 – a mast which supports the further GPS device; 62 – a remote control receiver antenna; 64 – a remote control transmitter antenna; 86 – a drill string.

It is clear that when the vehicle is not a mobile drill, the parts related to the actual drilling will not be present and some other parts may be present depending on the intended functionality of the vehicle. Those parts are not directly related to the control of the movement of the vehicle in the defined area and do not appear important to the invention.

The system for controlling the vehicle operates as follows (underlining added):

“[47] … The drill 12 is operable in at least two modes of operation, being an operator controlled mode and an autonomous mode. In the operator controlled mode, the drill 12 is operated remotely, i.e. in a remote control mode.
[48] In the remote control mode, the drill 12 is controlled remotely via the drill operator located at the user interface 18 [including display screens and input devices; not shown in figure 1] which is remotely located offsite. In the autonomous mode, the drill 12 operates largely without user intervention under the direction of the controller 26. However, when operating in the autonomous mode, it is possible for the driller [i.e. the drill operator] to override the autonomous mode and convert the drill 12 to the remote control mode of operation.
…
[50] The system 10 is intended for use in permitting one driller to control multiple drills 12. For this purpose, the user interface 18 includes a plurality of display screens … each drill 12 having two display screens 22, 24 associated with it.
…
[52] When the driller is controlling multiple drills 12, it is not always possible for the driller to devote complete attention to each of the drills. Hence, it is necessary that movement of the drill 12 in the defined area of each drill bench 14 is controlled so that the drill 12 does not stray outside that area. Hence, the system 10 includes the VSP 16 which defines a boundary of the defined area of the drill bench 14 traversed by the drill 12. In use, as the drill 12 drills blast holes 38 in the drill bench 14, it traverses the bench 14 and, when it comes within a predetermined range of the VSP 16, the controller 26 is operable to disable the drill at least when the drill 12 is operating in its autonomous mode so that the drill 12 does not breach the VSP 16. The controller 26 disables the drill 12 by placing the drill 12 in an idling mode.
…
[59] An error message 48 (Fig. 4) is displayed on the display screen 22 and may be accompanied by an audible warning. The driller is, therefore, alerted to the fact that the drill 12 has been disabled and is in an idling mode. The driller is able to take remedial action by switching over to remote control mode 12 and manoeuvring the drill 12 away from the VSP 16.

…
[63] It will be appreciated that the drill 12 requires maintenance, whether routine or arising due to unforeseen circumstances. In addition, the drill 12 needs to have consumables replenished at regular intervals. For this purpose, the driller is able to convert the mode of operation of the drill 12 to remote control mode. When the drill 12 is operating in remote control mode, it is possible for the driller to cause the drill 12 to cross the VSP 16 as shown, for example, in Fig. 6 of the drawings.”

While the Specification does not appear to provide a clear definition of what exactly characterises the idling mode (and Mr Saunders’s explanations at paragraph [68] of his declaration do not appear to suggest that this is a term in the art with a specific well defined meaning), the context implies that, in the idling mode, the vehicle at least does not move. In the remote control mode of operation, the operator controls the movement of the vehicle either by the display screen, which in this case is a touch screen, or by other input devices.

The Specification ends with 20 claims, from which claims 1, 8, 14, and 18 are independent and reproduced below (some formatting done to assist readability):

“1. A system for controlling operation of a mine vehicle in a defined area of a mine site, the system including
a perimeter defining an outer boundary of the defined area of the mine site;
a user interface for at least one of
controlling and monitoring movement of the vehicle as it traverses the area and
monitoring the location of the vehicle relative to the perimeter; and

a controller in communication with the user interface and to which the vehicle is responsive,
the vehicle having a plurality of modes of operation,
one of which is an autonomous mode and
another of which is an operator controlled mode,

and the controller being operative, when the vehicle is operating in the autonomous mode and the vehicle comes within a predetermined range of the perimeter,
to cease autonomous mode and
to notify an operator that the operator is to assume operator controlled mode of operation to move the vehicle out of the predetermined range of the perimeter,
which action includes at least manoeuvring the vehicle to cross the perimeter under control of the operator,

the user interface being configured to enable the operator to cause the controller to switch the vehicle back from the operator controlled mode to the autonomous mode when conditions again permit the vehicle to operate in autonomous mode.

…
8. A method of controlling operation of a mine vehicle in a defined area of a mine site,
the vehicle having a plurality of modes of operation,

the method including
monitoring a position of the vehicle relative to a perimeter defining an outer boundary of the defined area of the mine site as the vehicle traverses the area; and
when the vehicle is operating in an autonomous mode of operation and the vehicle comes within a predetermined range of the perimeter
disabling the vehicle by ceasing autonomous mode operation and
notifying an operator that the operator is to assume operator controlled mode of operation to move the vehicle out of the predetermined range of the perimeter,
which action includes at least manoeuvring the vehicle to cross the perimeter under control of an operator and

causing the controller to switch the vehicle back from the operator controlled mode to the autonomous mode when conditions again permit the vehicle to operate in autonomous mode.

…
14. A system for controlling operation of multiple mine vehicles,
each operating in a mine site,
each vehicle having a plurality of modes of operation,
including an autonomous mode of operation and an operator controlled mode of operation, and

each vehicle operating in a defined area of its mine site,
a safety perimeter defining an outer boundary of the defined area,

the system including
a controller associated with each vehicle,
each controller being configured to control operation of its associated vehicle in the defined area of its mine site including a mode of operation of its associated vehicle,
the controller being operative to cause its associated vehicle to cease autonomous mode of operation when that vehicle comes within a predetermined range of the perimeter of the defined area; and

a user interface in communication with each controller,
the user interface being accessible by an operator for enabling the operator at least
to monitor movement of each vehicle relative to the perimeter of its associated area and
to monitor the location of each vehicle relative to the perimeter of its associated area,

the user interface further being configured, when a selected one of the vehicles comes within the predetermined range of the perimeter,
to notify the operator that the selected one of the vehicles has ceased autonomous mode of operation to permit the operator to issue operating instructions to the controller of the selected one of the vehicles to convert the selected one of the vehicles to an operator controlled mode of operation,
which operating instructions includes at least
manoeuvring the selected one of the vehicles under control of the operator and
permitting the selected one of the vehicles to cross the perimeter under control of the operator,

the user interface also being configured to enable the operator to cause the controller to switch the selected one of the vehicles back from the operator controlled mode to the autonomous mode when vehicle operating conditions again permit the selected one of the vehicles to operate in autonomous mode.

…
18. A method of controlling operation of multiple mine vehicles,
each operating in a mine site,
each vehicle having a controller associated with it,
each vehicle having a plurality of modes of operation, including
an autonomous mode of operation and
an operator controlled mode of operation, and

each vehicle operating in a defined area of its mine site,
a safety perimeter defining an outer boundary of the defined area,

the method including
controlling operation of each vehicle in the defined area of its mine site via its controller, including a mode of operation of each vehicle,
the controller of each vehicle being operative to cause its associated vehicle to cease autonomous mode of operation when that vehicle comes within a predetermined range of the perimeter of the defined area;

enabling an operator at least
to monitor movement of each vehicle as it traverses its associated area and
to monitor the location of each vehicle relative to the perimeter of its associated area; and

when a selected one of the vehicles comes within a predetermined range of the perimeter,
notifying the operator that the selected one of the vehicles has ceased autonomous mode of operation and
permitting the operator to issue operating instructions to the controller of the selected one of the vehicles to convert the selected one of the vehicles to an operator controlled mode of operation,
which operating instructions includes at least
manoeuvring the selected one of the vehicles under control of the operator and
permitting the selected one of the vehicles to cross the perimeter under control of the operator,

and enabling the operator to cause the controller to switch the selected one of the vehicles back from the operator controlled mode to the autonomous mode when vehicle operating conditions again permit the selected one of the vehicles to operate in autonomous mode.”

CLAIM INTERPRETATION

It appears that claim construction is not in dispute and no clarity issues were raised in the Last Report. While, prima facie, it may look like there is no formal antecedent basis for “the controller” in claim 8, I do not consider that this is sufficient to create any ambiguities. It is clear from the claim language that a controller is present, and the method includes a step of “causing the controller to switch the vehicle back from the operator controlled mode to the autonomous mode”. No other reasonable interpretation is possible.

As it will become evident later in this decision, the arguments between the Applicant and the Examiner revolve mostly around claim 1. In essence, claim 1 defines that when a particular situation occurs, i.e. “when the vehicle is operating in the autonomous mode and the vehicle comes within a predetermined range of the perimeter”, certain actions are to be performed in a specific sequence. The first of these actions is “to cease autonomous mode”, and all subsequent actions appear to be, in fact, tied to this first action being performed. Hence, I consider that this first action being performed when the above particular situation occurs is pivotal to the invention defined in claim 1, and I will refer to it as the pivotal feature of claim 1.

In addition, it is clear that claim 1 requires that after ceasing autonomous mode and notifying the operator that the operator is to assume operator controlled mode of operation, the vehicle must be manoeuvred to cross the perimeter under control of the operator.

INVENTIVE STEP IN LIGHT OF DOCUMENT D1

The disclosure in Document D1 (US 2009/0326734 A1)

In general, document D1 discloses:

“[0007] … a method of operating a vehicle on a pile of material on a worksite, the material being released through an opening at the worksite. The method may include sensing a surface of the pile and identifying, based on the sensed surface and a known location of the opening, a disturbance zone on the surface of the pile caused by the release of material. The method may further include transmitting a signal indicative of the disturbance zone to the vehicle.”

This is illustrated on figure 1, which is reproduced below.
Document D1 explains that (underlining added):

“[0021] FIG. 1 illustrates an exemplary disclosed worksite 10. Worksite 10 may represent any material-gathering site at which mined materials, such as coal, sand, rock, gravel, and/or other loose material is collected for transportation to a destination, such as a distributor. For example, coal may be extracted from a mine, or another source 12 of material, and gathered at worksite 10 for transportation to a distributor.
[0022] A conveyor 14 and/or other material transport means on worksite 10 may move material 16 extracted from source 12 onto a material workpile 18 on worksite 10. An opening 20 positioned at the bottom of worksite 10, beneath workpile 18, may release (i.e., ‘drain’) material 16 from workpile 18 onto a transport vehicle 22, such as a train, a haul truck …
…
[0025] The draining of material 16 through opening 20 may cause a draw-down funnel 28, extending vertically through workpile 18 between opening 20 and a workpile surface 30 of workpile 18, to form within workpile 18. Material 16 within funnel 28 may be pulled by gravity toward opening 20, creating a disturbance zone 32 on workpile surface 30 into which material 16 enters funnel 28. That is, funnel 28 may define a mobile region of workpile 18 in which material 16 falls toward opening 20 …
…
[0032] Turning back to FIG. 1, vehicles 38, such as dozers and/or other equipment, and workers (not shown) may continually move material 16 about worksite 10 and into zone 32 as material 16 is released through opening 20, to efficiently load material 16 onto transport vehicle 22. Due to the mobile nature of material 16 within zone 32 (and within funnel 28), however, footing and/or traction within zone 32 may be poor. That is, material 16 inside zone 32 may be unstable, rendering traversal of zone 32 difficult and/or unsafe. Thus, while it may be advantageous to periodically move material 16 into zone 32 to maintain an even workpile 18 and to load transport vehicle 22 efficiently, it may also be desirable to, at the same time, keep vehicles 38, workers, and/or other objects outside of zone 32 (i.e., outside zone perimeter 36 [the reference number not shown on figure 1]). For example, due to the unstable footing within zone 32, vehicles 38 could become trapped if vehicles 38 enter zone 32.
[0033] Workers and vehicle operators may sometimes visually observe shifts of material 16 in workpile 18, and thereby detect and avoid zone 32. However, the slope of workpile surface 30 within zone 32 may at times be relatively flat, rendering zone 32 inconspicuous. This may make it difficult for the workers and vehicle operators to visually observe and avoid zone 32. Further, depending upon the type of material 16, workpile surface 30 can temporarily solidify, or ‘crust over’. Such ‘crusting’ can occur, for example, in coal stock piles. Additionally, because the workpile height h can change over time and or differ from location to location on workpile surface 30, the shape of zone 32 may be dynamic and/or irregular. These factors, among others, may further render accurate visual detection and avoidance of zone 32 by workers and vehicle operators difficult.”

Based on the definition for the term “vehicle” given in paragraph [07] of the Specification, and on Saunders at paragraphs [31]-[33], I consider that the above quoted paragraphs of document D1 do disclose the operation of a mine vehicle at a mine site as defined in claim 1. They also explain the problems associated with the presence of the disturbance zone and its specific character. The proposed solution to these problems involves the use of a worksite avoidance system, described with reference to figure 3, reproduced below.

Document D1 provides the following explanations about the design and functionality of the worksite avoidance system (underlining added):

“[0034] … Worksite avoidance system 40 may dynamically map workpile surface 30 to identify the presence, size, shape, and/or other features of zone 32, while vehicles 38 and/or workers move material 16 about workpile 16 [should read 18]. Worksite avoidance system 40 may determine whether vehicles 38 travel within a certain distance of, or into, zone 32, and send an alert signal to vehicles 38. Worksite avoidance system 40 may also transmit signals containing information about workpile surface 30 and/or zone 32 to vehicles during vehicle operation …
[0035] Worksite avoidance system 40 may include sensors 42 and vehicles in communication with a worksite computing system 44. Worksite computing system 44 may be associated with, for example, a mining company, a property owner, a contractor, an equipment rental business, and/or another worksite entity … Worksite computing system 44 may be situated on or near worksite 10, such as in a worksite headquarters (e.g., an onsite trailer), or at remote location, such as at a corporate headquarters.
…
[0066] Controller 50 may receive, via communication link 52, real-time updates of positions and/or orientations of vehicles 38 on workpile surface 30 …
…
[0068] Controller 50 may periodically or continuously calculate distances between vehicles 38 and zone perimeter 36 …
[0069] If controller 50 determines that the calculated distance d_n is less than a threshold (e.g., 5 feet), controller 50 may transmit an alert signal to vehicles 38; that is, when a vehicle travels too close to, or into, zone 32. Controller 50 may establish one or more buffer areas (not shown) surrounding sone 32, and similarly transmit an alert signal to vehicle 38 that travel too close to or into the buffer areas. In such a case, it is contemplated that a severity of the alert signal may be based upon the proximity of vehicles to zone 32.”

An exemplary vehicle is illustrated on figure 8, reproduced below.

Some details of the exemplary vehicle and how it is controlled are explained as follows (underlining added):
“[0070] In addition, controller 50 may transmit signals containing points X_G defining workpile surface 30 and points X_zp defining zone perimeter 36 to vehicles 38 so that vehicles 38 may display workpile 18 and/or zone 32 to vehicle operators. In this manner, vehicle operators may manually take precautions to avoid zone 32 while operating vehicles 38 on work pile 18. Likewise, autonomous (i.e., unmanned) vehicles 38 may avoid zone 32.
[0071] FIG. 8 shows an exemplary vehicle 38 that may operate on workpile 18. Vehicle 38 may be controlled by an onboard operator, remotely controlled by an off-site operator, and/or autonomously controlled. In the case of autonomous control, for example, vehicle 38 may be programmed to repeatedly move material 16 from one or more locations on workpile 18, along a prescribed path, into zone 32.
[0072] Vehicle 38 may include an onboard system 110 for controlling various operations of vehicle 38. Onboard system 110 may include a visual alert device 112, an audible alert device 114, a vehicle halting device 116, an operator display device 118, a positioning device 120, and a communication device 122 in communication with a vehicle controller 124. In an embodiment utilizing an autonomous vehicle 38, however, visual alert device 112, audible alert device 114, operator display device 118, and/or other devices may be omitted.
…
[0074] Vehicle halting device 116 may include vehicle brakes, switches, valves, motors, and/or other means (not shown) configured to halt operation of vehicle 38 (e.g., bring to a stop, slow down, power down, etc.) in response to a signal from vehicle controller 124.
…
[0076] Positioning device 120 may include a global positioning system (GPS) … and/or other devices configured to provide signals indicative of the position, pitch, roll, tilt, speed, acceleration, and/or other information relating to the movement of vehicle 38 …
[0077] Communication device 122 may include any device configured to facilitate communications between vehicle 38 and worksite computing system 44 …”

In summary, document D1 discloses that the mine vehicles are controlled in a way that facilitates the avoidance of the disturbance zone, by monitoring the location of the vehicles with respect to the outside perimeter of the disturbance zone and initiating actions when, e.g., a vehicle is within a predetermined distance from the zone perimeter. The document also discloses the possibilities of different vehicle control modes, including autonomous and operator controlled, the latter being either from the vehicle or from a remote location. It appears that the alert devices 112 and 114 are controlled by the vehicle controller 124 (see e.g. figure 8), which means that the vehicle controller 124 is present and operational not only in autonomous mode but also in operator controlled mode.

It would also appear that the area of the workpile surface outside the disturbance zone can be regarded as a disclosure of the claimed “defined area of the mine site” within which the vehicle moves and performs its function. Crossing the perimeter of the disturbance zone and thus exiting the defined area is undesirable and actions are taken when a vehicle comes within a predetermined distance from this zone perimeter. I note however that the disclosed zone perimeter is not exactly equivalent to “a perimeter defining an outer boundary of the defined area of the mine site” as defined in claim 1. The zone perimeter does define the boundary between the disturbance zone and the defined area, however the disturbance zone is, in fact, surrounded by the defined area, hence the zone perimeter is not “an outer boundary of the defined area”, instead it could probably be considered an inner boundary of the defined area. It would appear that the outer boundary of the defined area, in the settings of document D1, is determined by the outer perimeter of the workpile surface.

Nonetheless, I note that an important part of the invention claimed in the Application comprises the actions to be performed when a vehicle “comes within a predetermined range of the perimeter”. Hence, I consider that the corresponding disclosure in document D1 with respect to the actions performed when a vehicle approaches the disturbance zone perimeter is of critical importance. In that respect, document D1 explains (underlining added):

“[0082] Vehicle controller 124 may also perform one or more actions in response to receiving an alert signal from worksite avoidance system controller 50 (i.e., when vehicle 38 travels within a certain distance of, or into, zone perimeter 36). For example, vehicle controller 124 may send a signal to cause visual alert device 112 to illuminate, flash, etc., and thereby alert the vehicle operator that vehicle 38 has traveled too close to, or into, zone 32.

[0083] Vehicle controller 124 may alternatively or additionally send a signal to cause vehicle halting device 116 to halt operation of vehicle 38. For example, vehicle halting device 116 may power down vehicle 38, apply the vehicle’s brakes, disengage the vehicle’s transmission, reduce engine speed, and/or otherwise prevent vehicle 38 from entering or traveling further into zone 32. It is contemplated that a vehicle operator may be able to override the halting of vehicle 38, if desired.
[0084] Vehicle controller 124 may alternatively or additionally send a signal to cause audible alert device 114 to audibly alert the vehicle operator that vehicle 38 has traveled too close to, or into, zone 32. For example, audible alert device 114 may produce a disagreeable noise (e.g., a siren), or announce a message (e.g., ‘This vehicle has entered a restricted area on the worksite. Please exit immediately.’).
[0085] In another example, vehicle controller 124 may cause a similar message to be displayed on operator display device 118. This message may be augmented by, for example, the flashing of zone 32 and/or zone perimeter 36 on image 90 shown on operator display device 118 and/or another graphical alert provided on operator display device 118.
[0086] In a case where vehicle 38 is autonomous or unmanned and controlled to complete a programmed task, vehicle controller 124 may control operations of vehicle 38 such that zone 32 is avoided. For example, vehicle controller 124 may control vehicle 38 such that at least a minimum distance is maintained between the vehicle’s position and points X_zp defining zone perimeter 36.”

The Examiner’s objection

The inventive step objection contained in the Last Report is reproduced below (original emphasis). To allow easier referencing of the main points of disagreement between the Applicant and the Examiner, I have replaced the original bullet points in the objection with numbers (1) to (4) and, for brevity, I will refer to them as point (1) to point (4).

“The invention defined in claims 1 - 20 lack an inventive step and the objections raised in the previous Examination Report are maintained.
Applicant’s assertions and submissions have been carefully considered but they are not persuasive.
I will address the differences between the pending claims and D1 that the applicant has highlighted, starting at Page 1 and continued until Page 2, Paragraph 1.
(1) Pending claim 1 defines ceasing of autonomous mode when the vehicle comes within a predetermined range of the perimeter, D1 discloses autonomous operating mode but does not disclose ceasing this mode.

I respectfully disagree. D1 does disclose ceasing of the autonomous mode at Paragraph [0083] by stating that a vehicle operator may be able to override the halting of a vehicle.
Applicant asserts that D1 does teach a vehicle that will halt when coming within a certain distance of the perimeter, but it does not explicitly specify a mode of operation in which this halting occurs.
It is clear that Paragraph [0083] of D1 is contemplating a scenario when the vehicle is under the control of the vehicle controller 124 (see Fig. 8). At Paragraph [0086] D1 further teaches that, in an autonomous or unmanned vehicle, the controller 124 may control the operations of the vehicle. Therefore, given the role assigned by D1 to the controller 124, it would be readily apparent to a skilled person that the halting of the vehicle at Paragraph [0083] by controller 124 occurs in an autonomous mode which an operator can override.
(2) Pending claim 1 explicitly defines the operator causing the controller to switch the vehicle back from the operator controlled mode to the autonomous mode when conditions again permit the vehicle to operate in autonomous mode, D1 does not.

Clearly, as D1 discloses the operator overriding the controller, it is inherent that there must be some switching back to autonomous mode. The argument that such a feature is not inherent requires an interpretation of D1 to the effect that it is disclosing a system where vehicles operate autonomously until the controller is overridden and then, forevermore after that point, the vehicle must be operated non-autonomously. This is not an interpretation that the skilled person would sensibly apply to D1. Having arrived at the conclusion that D1 inherently discloses a switch back to autonomous mode, then it would be obvious to the skilled person that switching could be either manual or automatic. No invention is made in making a choice of one or the other.
(3) Pending claim 1 defines a scenario where the operator is able to manoeuvre the vehicle to cross the perimeter under operator control, D1 does not and in fact only discloses zones that for safety reasons cannot be entered under any circumstances.

Again, this feature is inherent in D1. The language of [0083], clearly states that the operator can override the halting of the vehicle as it nears the perimeter. It is readily apparent that the operator overrides the halting because the operator wants the vehicle to continue its current path. As continuing the current path must mean that the vehicle would cross the perimeter that it is closing in on, D1 inherently discloses that the operator can manoeuvre the vehicle to cross the perimeter. Nothing in D1 is stopping the operator manoeuvring the vehicle as they desire.
(4) In pending claim 1, the vehicle is operating within an area defined by the safety perimeter, not outside the area as described in D1.

I disagree that the vehicle of the current claim is in fact operating only within an area defined by the safety perimeter. The operator is manoeuvring the vehicle such that it crosses the safety area. In other words, the vehicle of the current invention operates outside the safety perimeter as well.
This feature is disclosed in D1. D1 discloses the vehicle operating in autonomous mode within a defined area (Paragraph [0082]). D1 also inherently discloses operating the vehicle outside the defined area when the operator stops the halting of the vehicle, eventually resulting in the vehicle crossing the perimeter (as per Paragraph [0083]).
As admitted by the Applicant, a problem may be what happens when a vehicle in autonomous mode comes within a predetermined distance of the boundary.
As discussed above D1 teaches that the vehicle may be brought to a halt (Paragraph [0083]). D1 also contemplates a scenario where when the vehicle comes closer to a perimeter, the vehicle is manoeuvred away from the boundary such that a minimum distance is maintained between the vehicle and the perimeter (Paragraph [0086]). D1 explicitly teaches that an operator can override this halting process (Paragraph [0083]). Therefore, in light of D1 a skilled person has three options in front of them when a vehicle approaches a perimeter- to halt the vehicle, to move away from the perimeter such that a minimum distance is maintained between the vehicle and the perimeter or to override the halting (inherently meaning that the vehicle is manoeuvred to continue on the path which will eventually result in the vehicle crossing the perimeter). It is also noted that there is no technical feature in D1 that stops the operator from manoeuvring the vehicle as they desire.
A skilled person would choose any one of these solutions to suit their scheme and implement them in a straight forward manner. As discussed on the phone, this is a simple coding technique they would have to employ within the controller.
The invention defined in claims 1 and 8 lacks an inventive step in light of prior art document D1.
D1 discloses all the features of claim 1 (Please see D1: Figs. 2, 3, 8 and Paragraphs [0002], [0069], [0071], [0083], [0090]). D1 does not explicitly teach the features of
-(a) the user interface being configured to enable the operator to cause the controller to switch the vehicle back from the operator controlled mode to the autonomous mode when conditions again permit the vehicle to operate in autonomous mode and
-(b) the operator manoeuvring the vehicle to cross the perimeter under operator control.
Regarding feature (a) as discussed earlier D1 discloses the operator overriding the controller, it is inherent that there must be some switching from autonomous mode to operator controlled mode. However D1 does not disclose the feature of causing the controller to switch the vehicle back from the operator controlled mode to the autonomous mode when conditions again permit the vehicle to operate in autonomous mode. This is considered to be a mere design choice in the current scheme.
A skilled person would implement this feature, the motivation being to have maximum autonomous operation and minimum operator interference. Additionally, the current specification does not define any problem that was overcome in implementing this feature in the user interface.
Regarding feature (b), as explained above, D1 inherently teaches the operator manoeuvring the vehicle such that the vehicle crosses the perimeter.
Independent claims 14 and 18 define corresponding features of claim 1 and further define multiple mine vehicles. This feature is disclosed in D1 at (Fig. 10 and corresponding text).
Furthermore, I have considered each of the appended claims 2 – 7, 9 – 13, 15 – 17, 19 - 20. Each of these claims is not considered to make any patentable contribution over the teachings of D1. The relevant features of these claims are either disclosed in D1 or are common general knowledge in the art and which therefore cannot contribute to providing an inventive step.
For example the feature of user interface being located remotely as defined in claims 2, 12 and 17 is disclosed in D1 at Paragraph [0035] and the feature of virtual perimeter defined in claims 7, 9 and 16 is disclosed in D1 at Fig. 9 Ref 36. The feature of a display screen to be haptic display defined at claims 4, 15 is well known in the art of electronic displays.”

I note that the above objection is quite detailed which helps in understanding the Examiner’s position and the supporting reasoning.

The Applicant’s submissions

The Applicant’s Summary appears to be broader than necessary, covering (in addition to inventive step) the issue of novelty, for which no objection was raised in the Last Report.

With respect to inventive step, in AS and the oral submissions, the Applicant (quite understandably) relies heavily on the evidence of Mr Saunders to develop its arguments with respect to the disclosure in document D1 and to demonstrate that the teachings of this document are very different from the claimed invention. In general, it does not appear to me that these submissions substantially advance the Applicant’s position beyond the evidence provided by Mr Saunders, hence I do not need to discuss them in detail.

Is the presently claimed invention obvious in light of document D1?

As I already noted, the arguments between the Applicant and the Examiner revolve mostly around claim 1, hence I will first determine whether the invention defined in this claim is obvious in light of document D1.

It appears that the main points of disagreement between the Examiner and the Applicant, namely point (1) to point (4) in the Last Report, relate to whether certain claimed features are disclosed (either explicitly or inherently) in document D1 or not. In fact, the inventive step objection with respect to document D1 appears to be based entirely on the premises that the features discussed at points (1) to (4) are disclosed in this document. In other words, if those features are not disclosed or at least obviously suggested, then the whole inventive step objection would appear to be unsustainable. Therefore, I consider it important to start my obviousness analysis by considering the potential disclosure of these features as discussed at points (1) to (4).

Point (1)

As it can be seen from the Last Report, the Examiner considers that the pivotal feature of ceasing the autonomous mode when a vehicle approaches the perimeter of the disturbance zone is disclosed in paragraph [0083]. The Examiner also points to the disclosure at paragraph [0086] that “[i]n a case where vehicle 38 is autonomous or unmanned … vehicle controller 124 may control operations of vehicle 38”.

I consider that halting the operation of the vehicle by the vehicle halting device as disclosed in paragraph [0083] clearly ceases the current mode of operation of the vehicle. The question is whether document D1 discloses a situation where immediately before halting the vehicle, it was operating in an autonomous mode.

When asked about the disclosure of document D1 with respect to autonomous vehicles (see Saunders at [36]), Mr Saunders states:

“37. In my opinion, D1 very much treats autonomous vehicles as being peripheral to what is discussed in the document. In fact, autonomous vehicles are only specifically mentioned in D1 at paragraphs [0003], [0070] to [0072], [0086] and [0093]. I am not surprised by this given the limited use of autonomous vehicles as at 2009 (and indeed, as at the relevant date).”

Then, Mr Saunders goes on to quote paragraphs [0070]-[0072] and [0082]-[0086] of document D1 (all of which were quoted earlier in this decision) and to explain how he interprets the relevant disclosure as well as the reasons for his interpretation (underlining added):

“39. I was asked by Cotters if I understood the disclosure in paragraph [0083] relating to ‘controller 124’ causing vehicle 38 to ‘halt operation’ was related to an operator controlled, manned vehicle or an autonomous, unmanned vehicle. In view of the passages referred to above, and based on my reading of the entirety of D1 and having regard only to information that was well-known and generally accepted by me and other mechanical and electrical engineers working in the Field as at the relevant date, I am of the clear opinion that [0083] is referring to an operator controlled vehicle, not autonomous mode …
…
44. Referring back to the relevant paragraphs above, paragraph [0070] specifically mentions that ‘autonomous (i.e., unmanned) vehicles 38 may avoid zone 32’. I understand this to mean that an autonomous vehicle would never go into zone 32 as it is programmed to avoid doing so. This is supported by paragraph [0071] which states that ‘autonomous control, for example, vehicle 38 may be programmed to repeatedly move material 16 from one or more locations on workpile 18, along a prescribed path, into zone 32’. It is noted that there is a distinction between moving material into zone 32 and vehicle 38 actually moving into zone 32, the latter of which does not happen as stated in paragraph [0070].
45. Paragraph [0072] discloses that vehicle 38’s onboard system 110 includes a number of alert devices including visual alert device 112, audible alert device 114, operator display device 118 and vehicle halting device 116. Additionally, this paragraph clarifies that in ‘an embodiment utilizing an autonomous vehicle 38, however, visual alert device 112, audible alert device 114, operator display device 118, and/or other devices may be omitted.’ As such, the vehicle with the alert devices referred to is the manned vehicle, and the unmanned autonomous vehicle is omitted logically as there would be no point in having an alert without an operator present to observe that alert.
46. Paragraph [0082] describes the scenario where controller 124 performs actions in response to an alert signal which arises if vehicle 38 travels within a certain distance of, or into, zone perimeter 36. One action is sending a signal to cause visual alert device 112 to illuminate or flash. Again, clearly this relates to the manned, operator controlled vehicle as the operator must be present to view the visual alert.
47. Immediately following, in paragraph [0083], it is stated that controller 124 can also ‘alternatively or additionally send a signal to cause vehicle halting device 116 to halt operation of vehicle 38.’ Noting that this is expressed to be an alternative to the visual alert in [0082], I consider that paragraph [0083] is also concerned with the manned, operator controlled vehicle and not the autonomous unmanned vehicle.
48. Paragraph [0084] then states that controller 124 can also ‘alternatively or additionally send a signal to cause audible alert device 114 to audibly alert the vehicle operator that vehicle 38 has traveled [sic] too close to, or into, zone 32.’ Clearly this relates to the manned, operator controlled vehicle as the operator again must be present to hear the audible alert.
49. Paragraph [0085] states that controller 124 can also ‘cause a similar [visual] message to be displayed on operator display device 118.’ Clearly this relates to the manned, operator controlled vehicle as the operator must be present to view the visual alert.
50. Although autonomous vehicles are mentioned in a few instances prior (such as paragraphs [0003] and [0070] to [0072]), the first reference to what an autonomous vehicle will do appears in paragraph [0086]. Paragraph [0086] refers to autonomous or unmanned vehicles, noting that these vehicles are ‘controlled to complete a programmed task’ and controller 124 is able to ‘control operations of vehicle 38 such that zone 32 is avoided.’ This is clearly stated as relating to autonomous vehicles, unlike the preceding four paragraphs which logically lend themselves to manned vehicles due to the nature of the onboard alerts.
51. Therefore, based on my reading of the entirety of D1 and having regard only to information that was well-known and generally accepted by me and other mechanical and electrical engineers working in the Field as at the relevant date, it is very clear to me that the halting functionality of paragraph [0083] relates to manned, operator controlled vehicles and not autonomous or unmanned vehicles.
52. The alerts and halting functionality in paragraphs [0082] to [0085] are safety measures that are specific to manned, operator controlled vehicles. In contrast, I understand from D1 that the safety measure for autonomous or unmanned vehicles is the implementation of the programmed avoidance of zone 32. As such, there would never be a situation where the autonomous vehicle will enter zone 32. Therefore, in my opinion, it is illogical to tie the halting functionality in paragraph [0083] to autonomous vehicles. This accords further with my understanding of geofences as at the relevant date, that they could operate so as to stop a vehicle entering a prescribed area at all (see paragraph 28 above).
…
55. On my reading of D1, it is clear to me that paragraphs [0082] to [0085] are referring to equipment being controlled by a human operator, whereas autonomous computer control is clearly referred to in paragraph [0086]. As such, in the scenario in paragraph [0083], the vehicle is not under the control of vehicle controller 124, but under the control of the vehicle operator (the human).”

I believe that, in the last quoted paragraph above, Mr Saunders’s statement “the vehicle is not under the control of vehicle controller 124” should be understood to mean that the vehicle is not entirely under the control of vehicle controller 124, as it is clear that the vehicle controller still controls at least the halting device 116 of the vehicle.

I consider that the interpretation of Mr Saunders is well reasoned and logical. Indeed, in light of the specific disclosure of how the avoidance of the disturbance zone is to be implemented with autonomous vehicles as described in paragraph [0086] (and also mentioned in paragraph [0093]), on balance, I am not satisfied that the disclosure of halting the vehicle as described in paragraph [0083] could also be applicable to such autonomous vehicles. Document D1 does not appear to contemplate a situation where a vehicle in autonomous mode of operation comes close enough to the perimeter of the disturbance zone to warrant halting of the vehicle. I am not satisfied that document D1 discloses ceasing the autonomous mode of operation of the vehicle as defined in claim 1. In other words, on balance, document D1 does not disclose the pivotal feature of claim 1.

In my view, this finding has serious consequences for the inventive step objection in light of document D1 as the analysis of obviousness in light of this document depends almost entirely on whether the pivotal feature of ceasing autonomous mode “when the vehicle is operating in the autonomous mode and the vehicle comes within a predetermined range of the perimeter” is either disclosed in the document or at least obviously suggested to the person skilled in the art by the teachings of the document. I will discuss this latter possibility in the following paragraph.

Document D1 discloses halting the vehicle when it comes within a predetermined distance of the perimeter while operating in operator controlled mode. Furthermore, document D1 discloses that, in autonomous mode, the vehicle is controlled “such that zone 32 is avoided”, e.g., “such that at least a minimum distance is maintained between the vehicle’s position and points X_zp defining zone perimeter 36” (see [0086]). Ceasing the autonomous mode of operation is not disclosed at all, regardless of the location of the vehicle with respect to the disturbance zone perimeter. Neither the disclosure in document D1, nor the evidence on file, provide any justification for me to consider that the pivotal feature would be obviously suggested to the person skilled in the art.

All this leads to the inevitable conclusion that there is a substantial difference between the teachings of document D1 and the invention defined in claim 1.

Points (2) to (4)

From the above discussion, it follows that points (2) to (4) are somewhat secondary, and I do not need to consider them at the same level of detail as I did for point (1) above. In the following paragraphs, I have provided some considerations in relation to the teachings of document D1 that I regard relevant to these points. As a general comment, I need to emphasise that the disclosure or obviousness of each of these individual features, per se, is not on its own sufficient if the context of such a disclosure or obvious suggestion is completely different and unrelated to the context of claim 1, being a specific sequence of features representing actions that follow the ceasing of autonomous mode of operation of the vehicle.

Firstly, as a matter of fact, it appears questionable whether document D1 discloses a vehicle that can be switched to operate in either autonomous mode or operator controlled mode. While one possible interpretation of paragraph [0071] (quoted earlier) could suggest that this may be the case, I note that this is not the only reasonable interpretation of this paragraph and Mr Saunders does not consider that such a vehicle is disclosed (see Saunders at [58]).

Secondly, although document D1 does contemplate specific situations where vehicles breach the perimeter and enter the disturbance zone, the general thrust of the disclosure, probably best expressed in paragraphs [0032]-[0033] and [0069] (quoted earlier), suggests that such situations are undesirable and the incursions within the disturbance zone are not deliberate (see also Saunders at [40]-[42]). In these specific situations, one of the disclosed options is to announce a message to the operator saying “This vehicle has entered a restricted area on the worksite. Please exit immediately” (see [0084]). Following such a message, the operator will control the vehicle to cross the perimeter and exit the disturbance zone. While, prima facie, this action may appear equivalent to the feature of “manoeuvring the vehicle to cross the perimeter under control of the operator” as defined in claim 1, it is important to note that, in the specific situations contemplated in document D1 where the vehicle has entered the disturbance zone, the vehicle does not appear to have been halted when “the vehicle comes within a predetermined range of the perimeter” as required by claim 1. In fact, it would appear that these specific situations are most likely to occur as a direct consequence of the vehicle not being halted when it comes within a predetermined range of the perimeter.

In addition, while in document D1 “[i]t is contemplated that a vehicle operator may be able to override the halting of vehicle 38, if desired” (see [0083]), this does not necessarily mean that the operator will control the vehicle to cross the perimeter and enter the disturbance zone. The operator may simply decide that the halting was too early, and they have sufficient space to progress further without crossing the perimeter.

It would appear that, within the context of the teachings of document D1, what is defined in claim 1 would be equivalent to halting the vehicle outside the disturbance zone within a predetermined distance or range of its perimeter and then, in operator controlled mode, performing the action of “mov[ing] the vehicle out of the predetermined range of the perimeter, which action includes at least manoeuvring the vehicle to cross the perimeter under control of the operator” to enter the disturbance zone. While indeed nothing would prevent an operator in full control of the vehicle from crossing the perimeter and entering the disturbance zone, I do not consider that fair reading of document D1 suggests that such a scenario is contemplated, even more so after halting the vehicle outside the disturbance zone within a predetermined distance from its perimeter. In my view, the disclosure in document D1 is unlikely to obviously suggest to the person skilled in the art the deliberate action of “manoeuvring the vehicle to cross the perimeter under control of the operator” starting from within the defined area in which the vehicle is operating, as defined in claim 1.

Furthermore, as I already mentioned, in document D1, the defined area is the surface area of the workpile outside of and surrounding the disturbance zone. Based on the disclosure of the document, I do not consider that the disturbance zone itself can properly be interpreted as a disclosure of the defined area in which the vehicle operates and which the vehicle traverses. Hence, the perimeter of the disturbance zone cannot be considered to be “defining an outer boundary of the defined area” as defined in claim 1.

In my view, the above considerations with respect to features somewhat related to points (2) to (4) provide further support for my earlier finding that the teachings of document D1 are substantially different from the invention defined in claim 1.

The disclosure of document D1 and the problem addressed by the instant invention

It does not appear to me that the Specification provides an explicit and specific discussion of the problem solved by the invention as presently claimed. According to paragraph [05], better and safer drilling of blast holes can be achieved by using automated drilling. Then, in paragraph [06], it is stated that “[t]he applicant believes that further benefits can be obtained by controlling a plurality of drills simultaneously” and that “[s]uch an initiative presents other challenges to be overcome” (underlining added) without actually explaining the nature of these challenges. It could probably be inferred that one of these challenges is related to what is explained in paragraph [52], namely that “[w]hen the driller is controlling multiple drills 12, it is not always possible for the driller to devote complete attention to each of the drills”. Other challenges appear related to the insufficient bandwidth of the existing wireless networks for the purposes of multi-drill communication (see [73]).

Relevantly to the issue, Mr Saunders comments:

“It is clear to me that the problem this Application is intending to solve is in response to issues related to controlling a plurality of automated drills.” (Saunders at [61])

It is worth noting that, firstly, independent claims 1 and 8 do not involve a plurality of mine vehicles and, secondly, none of the independent claims is limited to drills. In light of this, the above comment by Mr Saunders does not appear to assist in terms of formulating the problem for the purpose of obviousness analysis.

The Last Report asserts that “[a]s admitted by the Applicant, a problem may be what happens when a vehicle in autonomous mode comes within a predetermined distance of the boundary”. Considering the features defined in claim 1, this appears to be a reasonably fair statement of what the problem is related to. Importantly however, based on my earlier discussions, it is clear that, regardless of the precise formulation of the problem, the teachings of document D1 are substantially different to what is proposed by the invention defined in claim 1. Hence, taking into account the disclosure of document D1 and the evidence on file, I can see no motivation for the person skilled in the art to modify, as a matter of routine in light of the common general knowledge, the teachings of this document such that the presently claimed invention would be reached.

Conclusion on obviousness in light of document D1

In summary, based on the above analysis, I am not satisfied, on the balance of probabilities, that the invention defined in claim 1 is obvious in light of document D1. In addition, it appears to me that the invention defined in the other independent claims 8, 14, and 18 is not dissimilar to the invention defined in claim 1, hence my analysis and conclusion with respect to claim 1 are equally applicable, mutatis mutandis, to these claims. Therefore, I am not satisfied that any one of claims 8, 14, and 18 is obvious in light of document D1. The dependent claims add further features to those defined in the corresponding independent claims, and I have no reasons to believe that any one of these claims is obvious in light of document D1.

ADDITIONAL CONSIDERATIONS

Comments on the amendments proposed during examination

As I already mentioned, the instant hearing with respect to the sole outstanding objection raised in the Last Report is based on the Specification as presently proposed to be amended, including the description as proposed to be amended on 11 April 2019 and the claims as proposed to be amended on 20 August 2019.

The amendments proposed on 20 August 2019 appear to be consisting entirely of the deletion of claims 21 and 22 as on file at that point in time. These proposed amendments do not appear to present any issues.

The amendments proposed on 11 April 2019 also included the deletion of two claims, namely dependent claims 15 and 20 as on file at that point in time. However, in addition, these amendments included the following changes to claim 1 (the strikethrough indicates deleted text, whereas the underlining indicates added text):

“… to cease autonomous mode ~~operation to inhibit the vehicle from crossing the perimeter~~ and to notify an operator that the operator is to assume operator controlled mode of operation to move the vehicle out of the predetermined range of the perimeter, which action includes at least ~~one of~~ manoeuvring the vehicle~~, while within the defined area, away from the perimeter and crossing~~ to cross the perimeter under control of the operator …”

Somewhat similar changes were proposed to the other independent claims. The corresponding consistory statements were also proposed to be amended accordingly.

It appears that, in the specification as originally filed, the independent claims and the consistory statements provided for two possibilities for the movement of the vehicle after ceasing autonomous mode and notifying the operator that the operator is to assume operator controlled mode of operation: (i) manoeuvring the vehicle away from the perimeter while remaining within the defined area; and (ii) crossing the perimeter under control of the operator. In other words, in operator controlled mode, depending on the circumstances, the operator may or may not control the vehicle such that it crosses the perimeter. This also appears to be what could be logically derived from a fair reading as a whole of the specification as originally filed.

In contrast, as I already mentioned with respect to claim interpretation, claim 1 as proposed to be amended requires that after ceasing autonomous mode and notifying the operator that the operator is to assume operator controlled mode of operation, the vehicle must be manoeuvred to cross the perimeter under control of the operator. This means that, regardless of the circumstances, the operator must control the vehicle such that it crosses the perimeter, as no other option is provided to the operator. Similar requirements can also be found in the description as proposed to be amended. Having reviewed the specification as originally filed, it appears to me uncertain whether that specification provides sufficient basis for such a requirement, hence for the proposed amendments.

Comments on inventive step in general

I have not established that any one of the claims as presently proposed to be amended is obvious in light of document D1. While I am uncertain if the claims as originally filed would be obvious in light of this document, based on my analysis of the disclosure in document D1 this would appear somewhat unlikely.

However, during the course of working on this decision, I became aware of the following documents (last accessed on the Internet on 11 September 2020):

• Steve Fiscor, Editor-in-Chief, “Fully Automated Blasthole Drilling Becomes a Reality”, Engineering and Mining Journal, Features, December 2009, online:
Electric’s ARDVARC Drill Control System Features”, video apparently published on 31 August 2010, online:
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While the above documents may or may not be of decisive relevance to the issue of inventive step, their existence suggests that other relevant prior art documents may potentially exist, in addition to document D1. This, combined with my doubts about the allowability of the amendments that have resulted in the presently proposed claims, creates a reasonable degree of uncertainty with respect to the issue of obviousness in general, which I simply cannot ignore.
As I already mentioned, the inventive step objection in the Last Report relies heavily on an interpretation of document D1, according to which important features such as: (i) the pivotal feature of ceasing the autonomous mode when the vehicle operating in autonomous mode comes within the predetermined range of the perimeter; (ii) the deliberate crossing of the perimeter (for whatever reason) under operator control; and (iii) switching back from the operator controlled mode to the autonomous mode when the conditions allow this to happen, are either explicitly or implicitly/inherently disclosed in document D1. Because of that, the Last Report does not seek to evaluate the contribution of these features towards providing an inventive step in light of the problem solved by the claimed invention (as per Wellcome Foundation) beyond the disclosure of document D1. In general, it appears to me that it would be unreasonable to completely disregard the possibility for a valid challenge to the inventiveness of the solution to the problem provided by the claimed invention, when the prior art base and the common general knowledge in the art are properly taken into account.
CONCLUSION
As I stated at the beginning of this decision, the instant hearing is with respect to the sole outstanding objection raised in the Last Report and is based on the Specification as presently proposed to be amended, including the description as proposed to be amended on 11 April 2019 and the claims as proposed to be amended on 20 August 2019. I also emphasised that, following the principles of natural justice, my decision is limited only to matters covered by the instant hearing.
As I already stated, I am not satisfied that the sole objection raised in the Last Report can be sustained with respect to the claims as presently proposed to be amended.
However, in view of my comments with respect to the uncertainties regarding the allowability of the proposed amendments and the issue of obviousness in general, I am also not satisfied that the Application, in its present form, should be accepted.
In these circumstances, I consider it appropriate for the examination process to continue so that at least the above mentioned uncertainties can be resolved. This will also provide the Applicant with the opportunity to respond to possible new objections, whether related to these uncertainties or not, should an examiner consider it warranted to raise any in a further examination report.
Given the degree of uncertainty reflected in my earlier comments and taking into account the fact that the inventive step objection in light of document D1 was raised and maintained for five consecutive examination reports (the last three of them being essentially with respect to the claims as presently proposed to be amended), I consider it fair and appropriate to use my discretionary power under subregulation 13.4(3) and to substitute a period longer than the period given under subregulation 13.4(1), paragraph (g) to gain acceptance of the patent request and complete specification in relation to the Application. In the circumstances of the case, I consider it appropriate that this period is 6 (six) months from the date of this decision.
Examination related correspondence to the Applicant will issue in due course.
Dr V. Z. Kolev
Delegate of the Commissioner of Patents