The Regents of The University of California - [2022] APO 77

IP AUSTRALIA
AUSTRALIAN PATENT OFFICE
The Regents of The University of California [2022] APO 77

Patent Application: 2020213392
Title:Enhanced cognition in the presence of distraction and/or interruption

Patent Applicant:                   The Regents of The University of California
Delegate:  Dr N. R. Madsen – Deputy Commissioner of Patents
Decision Date:  29 November 2022
Hearing Date:  4 November 2022, by video conference

Catchwords: PATENTS – section 45 – examiner’s objection – method for enhancing cognition as a result of ageing using gaming operations and distractions – manner of manufacture – novelty – invention in substance directed to a mere scheme – alleged invention not a manner of manufacture – application refused

Representation: Patent attorneys for the applicant: Beata Khaidurova and Sylvan Browne of FB Rice

IP AUSTRALIA
AUSTRALIAN PATENT OFFICE
Patent Application: 2020213392
Title:Enhanced cognition in the presence of distraction and/or interruption

Patent Applicant: The Regents of The University of California
Date of Decision: 29 November 2022
DECISION
The claims of the application, as proposed to be amended, do not define a manner of manufacture. I see no subject matter in the specification that would change this finding.

I refuse the application.
REASONS FOR DECISION
BACKGROUND

The Regents of The University of California (“the applicant”) filed patent application 2020213392 on 7 August 2020 as a divisional application of 2018260916, with the family tracing back to a great-grandparent application filed 10 November 2011 numbered 2011326372. This great-grandparent generates the source of priority on 11 November 2010 via US application 61/412738. After filing amendments in anticipation of examination, a first examination report issued on the present application on 15 March 2021 including an objection under the ground of manner of manufacture. The applicant filed a response with amendments and a second adverse report issued including the grounds of manner of manufacture and novelty. Following this report, a hearing was requested.
The examination of the present application is governed by the Patents Act 1990 (“the Act”) as amended by the Intellectual Property Laws Amendment (Raising the Bar) Act 2012 (“the Raising the Bar Act”) as the application was filed after 15 April 2013. Thus, I must accept the application if satisfied on the balance of probabilities that the application complies with the Act. If I am not so satisfied, then I can refuse the application. Furthermore, the final date for acceptance of the application was 15 March 2022, however paragraph 13.4(1)(g) of the Patent Regulations 1991 is available to extend the time for gaining acceptance to 3 months (or longer if appropriate under sub-regulation 13.4(3)) from the date of the present decision.
SPECIFICATION
The specification begins by discussing that cognitive decline is a near-universal aspect of aging, with some declination related to processing of sound and sight function and others related to command of motor skills in the presence of a challenging environment (noisy, time-limited, attentionally demanding). The ability to cognitively perform in the presence of interruption and distraction commonly reduces with age and in as much, tools to improve such cognition are required. The present invention provides such a tool. A general overview of the invention is provided in the summary at paragraph [0006].
An aspect of the present disclosure relates to methods and tools for enhancing cognition in an individual, e.g., by improving the individual's ability to deal with interference in cognitive function. The training methods can involve presenting to an individual a task to be performed, presenting to the individual an interference, and receiving inputs from the individual. Where the interference is a distraction, the individual is to ignore the interference. Where the intereference (sic) is an interruptor, the individual is instructed to respond to the interruptor as a secondary task and is said to be multi-tasking. Inputs can also be received from the individual pertaining to this secondary task. The methods encompass iterations of various presentating (sic) steps and receiving of the input. The methods can further include conducting an analysis and/or generating feedback to the individual. The analysis can include a comparison of the performances with or without each type of interference, and, in some embodiments, the difficulty of the task may be modulated as a function of this comparison. Another aspect of the present invention provides presenting tasks with increasing levels of interference. Diagnostic methods are also provided herein and are used to assess cognitive ability of an individual independent of or in combination of the traing (sic) methods disclosed herein. The diagnostic methods can include the step of measuring the disparity between performance on a baseline task and that baseline task when presented along with interference, analyzing that disparity, and providing feedback of that information to either drive a diagnostic decision or modulate the training protocol.
This overview is followed by a discussion of various embodiments of the invention in a range of consistory statements and introduction of the figures of the specification, before a detailed description is provided of the invention.
At [0070] the specification begins discussing the function of the invention in a general-purpose computer system comprising a processor, memory, interface, database, input and output. Several paragraphs are spent discussing common elements of computer devices for example including USB ports, wireless communication, remote operation, and internet connectivity. At [0078] there is also discussion of the invention functioning in well-known computing systems such as personal computers, handheld or laptop devices, personal digital assistants, multiprocessor systems, set top boxes, and game server computers to name a few. A series of definitions are then provided as follows, these being useful in construing the invention:
The term "cognition", as used herein, can include, but is not limited to, domains such as perception, attention, memory, motor function, problem solving, language processing, decision making and intelligence.
"Targets," as used herein, may be both concrete (e.g., a visual focal point such as a person or sign, or an auditory focal point such as a tone or conversation) as well as abstract (e.g., a concept in one's thought process such as an idea or memory or representation of an event).
The term "memory" may additionally refer to the ability of an individual to learn and retain information either in the long term or the short term.
The term "perception" may additionally refer the ability of an individual to receive and process stimuli.
The term "inter-stimulus-interval (ISI)”, refers to a specified amount of time between ceasing presentation of a stimulus and presenting a next stimulus in a sequence. For example, a secondary stimulus in the methods of the present disclosure can be presented repeatedly in a sequence with a gap of two seconds.
The term "target stimulus", as used herein, refers to a stimulus that is arbitrarily chosen by the method or device to be the focus point among a group of different stimuli presented to an individual. An individual is instructed as to the one or more properties that distinguish the target stimulus from the non-target stimulus. The target stimulus differs in at least one property from a non-target stimulus.
As used herein, the term "non-target stimulus" refers to a stimulus that is not the focus point due to a difference in at least one or more different properties. A non-target stimulus may differ from a target stimulus but is not necessarily the same as another non-target stimulus.
The term "task" refers to a goal and/or objective to be accomplished by an individual who provides a response to a particular stimulus. For example, the individual would have been instructed to perform a specific goal. The "task" can serve as the baseline cognitive function that is being performed and measured, and to which interference is added. Thus, a "task" often refers to the main goal that an individual is instructed to perform in either the presence or absence of interference.
The term "interference" with reference to a specific function, as used herein, refers to any stimulus presented to an individual that has the potential interfere with the performance of a primary task. Interference may be present from one or more of a variety of modalities, including visual, auditory, mental (internal), or other modes. Interference can be generally classified as a distraction or an interruptor that is presented to an individual when the individual is engaged in performing a task. An interference is a "distractor" or "distraction" if the individual is instructed to ignore the interference. Where the interference is a stimulus to which the individual is instructed to respond, the interference is referred to herein as an "interruptor" or an "interruption". Performing a task in the presence of an interruptor causes the individual to carry out both a primary task and a secondary task. As such, the individual is said to be multi-tasking in the presence of an interruptor.
The term "interference cost" of a given function, as used herein, refers to the difference in performance between the function performed in a baseline environment and the function performed in an environment with one or more interference.
At [0098] the discussion of the invention begins in more detail. It is noted that the present invention seeks to enhance cognition in the presence of interference by assessing an individual through determination of an interference cost, being the difference between the performance of a task in isolation versus the performance of a task with an interruptor or distractor involved. Interference occurs concurrently with the relevant task and it is the practiced function of dealing with this interference that appears to drive improvement in relevant cognitive ability. Reference is then made to Figure 10 which is as follows:
Figure 10 depicts the invention as involving the presentation of a task stimuli to an individual (2) and then receiving some kind of input from the individual (4). Following this an interference to the task is presented to the individual (6) before a second input is received from the individual. The presentation and receiving steps are repeated (10) in a trial that lasts for a specific period of time (18) and incorporates data analysis and output, wherein multiple trials can be incorporated into a training session. In such a mode of operation, difficultly levels for performing a task can clearly be modified within a trial and across a training session. The specification also notes that the ordering of interference and “non-interference” tasks may not necessarily be sequential, but could for example be reversed or simultaneous.
The types of tasks and interferences are discussed in paragraph [00111].
Tasks can be selected from any variety of cognitive or behavioral (sic) modality, including, but not limited to, fundamental functions such as perception, attention, memory, or motor function, and higher order processes such as decision-making, intelligence, and the like. An example of a task is one in which the individual pays attention to the stimulus presented, processes the information of the stimulus, and responds as instructed. Certain tasks include detection tasks, target discrimination tasks, tracking tasks, acting on a cue, and other data processing tasks, such as responding to a question. Detection task requires an individual to respond to an occurrence of a stimulus (e.g. a sound or the appearance of an object on a screen). Target discrimination requires an individual to identify a target stimulus from a non-target. A tracking task can involve tracking a path that changes in direction, or pinpointing a moving target. Other examples of a task include carrying on a conversation, typing/writing, physical fitness (e.g. running, walking, biking), reading, shooting, controlling a character on a screen, playing a sport, formulating a strategic decision, keeping an object in memory or reporting on an object contained in memory and the like.
A trial and session are discussed at paragraph [00116] as being of any sensibly desired length, depending on the number of iterations. Thus, it is noted that a trial could be of the order of seconds to minutes, with intertrial intervals of the order of seconds to minutes or even days. A session can contain any number of trials with numbers suggested of the order of 4 to 40 or more. A group of sessions might be referred to as a training program. Clearly, a vast range of tailored stimulus programs can be arranged.
At paragraph [00125] examples of the way in which difficulty can be adjusted are introduced. For example, the specification notes that one way to increase difficulty is to minimize the difference between non-target stimuli and the target stimuli. Images, graphical elements, or auditory elements can be morphed so that the target stimulus becomes more and more similar (in physical/semantic attributes) to the non-target stimuli. Other examples include increasing the number of elements presented, increasing unpredictability, combining stimuli or tasks, increasing complexity, or any combination of the above.
A further important aspect of the invention is the received input from the individual. Response types are discussed at paragraph [00141] and [00142] of the specification.
Depending on the task, an individual can respond in one or more of a variety of ways, including but not limited to vocally or via his or her motor function. For example, in a target discrimination task, the response is to click a certain button when presented with a target stimulus and refrain from clicking the button when presented with a non-target stimulus. Other motor response can include, but are not limited to, stepping on a foot pedal, moving another part of the body (e.g., nodding), running, jumping, etc. Alternatively, the individual can respond vocally by speaking a word or a phrase when presented with a target stimulus.
Where the task involves a series of visual stimulus as a motion picture, the individual may be instructed to navigate a moving object such as a vehicle (e.g,. a car or a bike) or to click on certain moving objects. These types of response may be described as visuomotor tracking and can be performed with a keyboard, joystick, bicycle, treadmill, or other exercise equipment, for example. Similarly, where an individual tracks an auditory stimulus by clicking in the direction of the source of the sound, the response may be described as auditory-motor tracking.
Mathematical methods can be used to perform an assessment of the individual participating in the training exercise, with examples of analysis of data being presented in the specification. Some examples of assessment of cognitive abilities that are known in the art that appear useful to the present invention are discussed in the specification at [00164] include those for intelligence (e.g. Kohs block, Miller Analogies Test, Wechsler Adult Intelligence, Wonderlic Test, or other IQ-related test), for cognitive development (e.g. Knox Cubes, language aptitude, Porteus Maze Test, and the like), psychiatric/personality test (e.g. Myer-Briggs, etc.), and memory test (e.g. short-term, long-term, working, semantic, etc), sustained attention test, selective attention tests, Useful Field of View, TOVA, Filter test, Object-tracking test, dual task test, and attentional blink. At [00167] it is also noted that that inputs to assessment may be received from common gaming technology such as a Sony Wii Fit, Playstation Move, or Xbox Kinect.
The specification also discusses the target population for the present invention. It notes at [00193] that individuals that can use the methods can be any person, especially those who are interested in enhancing cognitive ability. No doubt the invention may be more desirable to those of an older age group where cognitive decline is a real risk and at this point, I make the observation that an individual may appear to be able to participate in a method encompassed by the described invention for their own challenge or enjoyment. Reference is made in the specification to cognitive decline or impairment due to many factors that include general neurological injury, mental health issues, autism spectrum disorders, effects of drugs and alcohol, and many conditions generally associated with aging. It is even noted that the invention may serve to improve general metrics of cognitive ability aimed at the enhancement of IQ and could be applicable to any range of subject matter areas, age group, performance level or occupation. This is no doubt a vast ranging potential application, a point that on my reckoning, stresses that the invention appears to be useful as an exercise for allowing people to practice any type of tasks in a distraction context, such that they get better at it.
Towards the end of the specification there is discussion of the use of the invention to diagnose and enhance cognition, with data demonstrating the invention’s efficacy in practice. I have no reason to doubt that the invention when applied in practice is effective at increasing the ability of individuals. Some end-user products are also discussed later in the specification where it is observed that such products may be integrated into social network platforms such as Facebook®, Twitter®, Linked-In®, and Google Plus® or into non-electronic games such as board or card games. The specification also discusses integration into laboratory set paradigms or even incorporated into daily life.
Specific examples of embodiment of the invention described above are presented in the specification. I present one example here involving a single task being visuomotor tracking. As noted in the description:
Participants viewed a three-dimensional environment with a road extending into the distance. They saw their "car" positioned on a road, 2.5 degrees below a central fixation cross. When the session began, the car would appear to move forward as the road advanced towards the participant. As the road advanced, it curved to the left and right, and participants were instructed to maintain the car in the center of the road (gray zone) using the horizontal axis of the joystick with their right hand, all the while maintaining visual fixation on the cross hair. In addition to the road turning, it was also graded. Participants maintained constant speed by keeping the car within an indicator (speedometer) that advanced on the road along with the car. This was accomplished by using the vertical axis of the joystick to correct for speed changes resulting from hills and valleys; i.e., pushing forward when going up a hill to speed up and pulling back when going down a hill to slow down. The speed of the car was pre established for each participant prior to each session using a staircase thresholding procedure to attain a performance level of 80% time on road. The exact position on the road relative to center was recorded. Feedback to participants for deviations from the road was indicated by shaking of the crosshair when off road, and overall time on road was presented at the end of each block.
Here, a distraction to this task is applied in the form of irrelevant visual signs being presented while driving.
Claimed Invention
With their summary of submissions prior to the hearing, the applicant filed amendments to the claims. Claims 1, 25 and 26 as proposed to be amended on 28 October 2022 are the independent claims. They are as follows:
1. A computer-implemented method for enhancing cognition of an individual by training the individual to process interference in conjunction with a task, said method being implemented using a computer device comprising an input device, said method comprising:
using the computer device, presenting at least a first task having a difficulty level to the individual, the first task requiring a first response from the individual via the input device;
using the computer device, present at least a first interference with the first task, the first task requiring a second response from the individual to the first task in the presence of the first interference via the input device;
wherein the first interference diverts the individual’s attention from the first task and is configured as a distraction and/or an interruptor;
obtaining in said computer device input data indicative of the individual’s first response and second response to the at least a first task;
analyzing in said computer device the individual’s performance by determining a difference between the individual’s performance of the first task without interference versus with interference;
using the computer device, presenting the at least a first task and the at least a first interference and obtaining in said computer device the first response and the second response in an iterative manner;
using the computer device, adjusting the difficulty level of the at least a first task based upon the individual’s performance determined in the analyzing;
using the computer device, presenting the first task having the adjusted difficulty level to the individual; and
determining a measure of the individual’s cognitive ability.
25. A computer-implemented method for enhancing cognition of an individual by training the individual to process interference in conjunction with a task, said method being implemented using a computer device comprising an input device, said method comprising:
using the computer device, presenting at least a first task having a difficulty level to the individual, the first task requiring a first response from the individual via the input device;
using the computer device, presenting at least a first interference with the first task, the first task requiring a second response from the individual to the first task in the presence of the first interference via the input device;
wherein the first interference diverts the individual’s attention from the first task and is configured as a distraction and/or an interruptor;
using the computer device, instruct the individual not to respond to the first interference that is configured as a distraction and to respond to the first interference that is configured as an interruptor as a secondary task;
using the computer device: (i) receive a response to the first interference at substantially the same time as the computer device receives the second response, or (ii) receive the response to the first interference that is an interruptor at substantially the same time as the computer device receives the second response and not receive the response to the distraction at substantially the same time that the computer device receives the second response;
obtaining in said computer device input data indicative of the individual’s first response and second response to the at least a first task;
analyzing in said computer device the individual’s performance by determining an interference cost, the interference cost being the difference between the individual’s performance of the first task without interference versus with interference;
using the computer device, adjusting the difficulty level of the at least a first task based upon the determined interference cost;
using the computer device, presenting the first task having the adjusted difficulty level to the individual.
26. A computer-implemented method for determining a level of cognitive function in an individual, said method being implemented using a computer device comprising an input device, said method comprising:
determining a baseline task difficulty using an adaptive thresholding method, the adaptive thresholding method comprising iteratively providing the individual with training tasks and adaptively adjusting the difficulty of the training tasks until the individual’s performance achieves a predetermined level of performance;
using the computer device, presenting a first task to the individual requiring a first response from the individual via the input device, the first task having the baseline task difficulty;
receiving, by the computing device, first response input data generated by the input device;
using the computer device, presenting a distraction with the first task, the first task requiring a second response from the individual via the input device in the presence of the distraction;
receiving, by the computer device, second response input data generated by the input device;
determining an interference cost by determining a difference between the first response input data and the second response input data, the interference cost being an indication of the difference in the individual’s performance in performing the first task without interference and with interference; and
based on the determined interference cost, determining a measure of the individual’s cognitive function.

I don’t see challenges in understanding the features and scope of the invention of the independent claims and having reviewed the claims and the specification, I proceed on the understanding that the proposed amendments are allowable.
With a focus on claim 1, what is present at the highest level is a method that is implemented in a computer where a variety of information is shown, inputs are received from an individual, and an analysis is performed. It is the nature of the information shown and inputs received that enables an individual to practice their performance in the presence of distraction. More specifically, a first step is that a first task of a certain difficulty is presented to an individual using the computing device. Data is obtained by the computer via an input of the individual’s response to this task. An interference is then placed to distract the individual from the first task, and a further response is received via input from the user to the first task in the presence of the distraction. In doing so, differential data is available to compare the individual’s abilities with and without distraction.
After receipt of inputs, the computer then analyses the individual’s performance by looking at the difference in the inputs. The process of presenting a task with and without interference in then iterated, seeking inputs again with and without interference wherein the difficulty of the task is adjusted on the basis of the earlier analysis and the task is presented with adjusted difficulty. Ultimately this process of iteration and adjusted difficulty can be used to generate an output that is indicative of cognitive ability.
Claims 25 and 26 are directed to similar subject matter. Claim 25 includes features relating to the use of a distraction or and interruptor and instruction to not respond to a distraction but to respond to an interruptor, and receipt of responses at substantially the same time. Claim 26 adds features to further characterise it as a method of determination of cognitive function that involves an initial baselining of task difficulty with an adaptive thresholding method. However, it is ultimately the case that the matter turns on fundamentally the same question across these claims.
MANNER OF MANUFACTURE
Legal Principles
In National Research Development Corporation v Commissioner of Patents (NRDC), [1959] HCA 67, (1959) 102 CLR 252, the High Court provided a statement of the law regarding manner of manufacture. At page 275-276:
“… a process, to fall within the limits of patentability which the context of the Statute of Monopolies has supplied, must be one that offers some advantage which is material, in the sense that the process belongs to a useful art as distinct from a fine art …- that its value to the country is in the field of economic endeavour…
… sufficient authority has been cited to show that the ‘something’ need not be a ‘thing"’ in the sense of an article; it may be any physical phenomenon in which the effect, be it creation or merely alteration, may be observed…”
The High Court though was not laying down a precise formulation that can be applied unthinkingly. In D’Arcy v Myriad Genetics Inc (Myriad), [2015] HCA 35, at [23]:
“This Court in NRDC did not prescribe a well-defined pathway for the development of the concept of ‘manner of manufacture’ in its application to unimagined technologies with unimagined characteristics and implications. Rather, it authorised a case-by-case methodology.”
That case-by-case approach must have regard to the substance of the claimed invention, not simply the form of the claim. The point was made succinctly in the Myriad case by Gageler and Nettle JJ. At [144]:-
“Whatever words have been used, the matter must be looked at as one of substance and effect must be given to the true nature of the claim.”
Thus, the assessment as to patentable subject matter in this context requires a consideration of the substance of the invention.
To further guide the determination of patentable subject matter in the context of computer implemented inventions, a range of principles have been developed by the Full Federal Court. Recently, consideration has been given to these principles in the High Court decision in Aristocrat Technologies Australia Pty Ltd v Commissioner of Patents [2022] HCA 29 (Aristocrat) where the Court was evenly split regarding a finding of patentability. While split, the High Court affirmed the correctness of decisions in Commissioner of Patents v RPL Central Pty Ltd (RPL Central) [2015] FCAFC 177, Research Affiliates LLC v Commissioner of Patents (Research Affiliates) [2014] FCAFC 150, Encompass Corporation Pty Ltd v InfoTrack Pty Ltd(Encompass) [2019] FCAFC 161, and Commissioner of Patents v Rokt Pte Ltd (Rokt 2) [2020] FCAFC 86 were correct, while also appearing to confirm that an advance in computer technology is not a useful test for patentability.
The principles of law that apply to the present matter in the context of computer implementation appear to be well reflected in that summarised and generally accepted at [200]-[201] by Robertson J in Rokt Pte Ltd v Commissioner of Patents [2018] FCA 1988 (Rokt 1) at [189] as follows:
“17.1 The Court must decide, as matter of substance not form, whether the claimed invention is the proper subject-matter for a patent: RPL Central at [99]; Research Affiliates at [106], [117].
17.2       This requires consideration of both the claims of the Application and the invention described in the body of the specification: RPL Central at [114].
17.3       The assessment is not done mechanically. There are no precise guidelines or mathematical formula. It is ‘a question of understanding what has been the work of, the output of, and the result of, human ingenuity’ and then applying the developed principles: Research Affiliates at [116]. See further RPL Central at [112]:
Recognising that the claims are to a method and system comprising a combination of integers, it is necessary to understand where the inventiveness or ingenuity is said to lie ...
17.4       One well-settled principle is that a distinction exists between a technological innovation and a business innovation. A technological innovation is patentable. A business innovation is not: Research Affiliates at [94]; RPL Central at [100]. Consequently, a business method or scheme is not, per se, a proper subject for letters patent: RPL Central at [96]. Nor are abstract ideas, mere intellectual information or mere directions for use patentable: Research Affiliates at [101]; RPL Central at [100].
17.5       A computerised business method or scheme can, in some cases, be patentable. However, ‘[w]here the claimed invention is to a computerised business method, the invention must lie in that computerisation’: RPL Central at [96] (emphasis added). This requires ‘some ingenuity in the way in which the computer is used’: RPL Central at [104]. It is not a patentable invention ‘to simply “put” a business method “into” a computer to implement the business method using the computer for its well-known and understood functions’: RPL Central at [96]. In other words, if the ingenuity lies in the business method or scheme alone, the invention will not be patentable despite the computer-implementation.
17.6       Thus, a claimed invention must be examined to ascertain whether it is in substance a scheme or plan, or whether it can broadly be described as an improvement in computer technology: RPL Central at [96]. Contrary to [the applicant’s submissions at [49]], this is a binary distinction: the invention is either an unpatentable scheme or plan, or it is a patentable improvement in computer technology. In conducting the analysis, it is useful to:
17.6.1      ascertain whether the contribution to the claimed invention is technical in nature: RPL Central at [99], Research Affiliates at [114];
17.6.2      consider whether the invention solves a ‘technical’ problem within the computer or outside the computer: RPL Central at [99], Research Affiliates at [103];
17.6.3      consider whether the invention results in an improvement in the functioning of the computer, irrespective of the data being processed: RPL Central at [99], Research Affiliates at [118];
17.6.4      consider whether the invention requires merely ‘generic computer implementation’, as distinct from steps which are ‘foreign’ to the normal use of computers: RPL Central at [99], [102]; Research Affiliates at [101]; and
17.6.5      consider whether the computer is merely the intermediary, configured to carry out the method using program code for performing the method, but adding nothing to the substance of the idea: RPL Central at [99].”
It is further relevant to this matter to also consider case law regarding concepts of manner of manufacture that bear close relationship to the nature of the present invention as being an invention that can be broadly said to improve the human condition and/or human capability. In Apotex Pty Ltd v Sanofi-Aventis Australia Pty Ltd (Apotex) [2013] HCA 50, it was confirmed that methods for medical treatment of the human body, having economic utility were patentable. At [286] it was held that:
“Assuming that all other requirements for patentability are met, a method (or process) for medical treatment of the human body which is capable of satisfying the NRDC Case test, namely that it is a contribution to a useful art having economic utility, can be a manner of manufacture and hence a patentable invention within the meaning of s 18(1)(a) of the 1990 Act.”
The invention in Apotex concerned the prevention or treatment of a specific condition known as psoriasis by the administration of leflunomide which was found to be for a manner of manufacture as satisfying the requirements of NRDC.
While the UK had diverged from Australia in relation to methods of treatment prior to their 1977 Act (Apotex at [14], [25]), useful guidance can also be drawn from decisions of the Patent Appeal Tribunal of the United Kingdom which considered the scope of the requirement for a manner of manufacture with reference to the same jurisprudence from which the concept of manner of manufacture is drawn under Australian law. In Dixon’s Application [1978] RPC 687, the invention was directed towards a method of speech instruction involving conditioning the diaphragm by following certain instructions and developing diction by reciting certain word patterns, the method when performed necessarily producing physical effects on the body. This method of instruction of better using the diaphragm was not found to be a manner of manufacture and was contrasted with the method for teaching language pronunciation described in Pitman’s Application [1969] RPC 646 which was found patentable because Pitman’s invention was directed to information presented in a particular way to serve a mechanical purpose. A range of similar early cases also confirm patentability can be found where a mechanical purpose is served (Kessler [1973] RPC 413, Rhodes [1973] RPC 243, Cobianchi (1953) 70 RPC 199and Littlewood (1954) 71 RPC 185).
I also note a decision of former Deputy Commissioner of Patents, Phil Spann, in First Principles [2011] APO 1. There, the invention was broadly directed towards a method of psychological analysis and therapy. In considering the requirements of NRDC the Deputy Commissioner noted at [13]:
“In answer to the examiner’s objection on this point the applicant’s submissions suggest that the method of the claims produces an ‘observable effect’ because it results in a change in the emotional and, consequently, the physiological state of the subject. However this is clearly not the sort of ‘physical phenomenon or effect’ anticipated in Grant or indeed is in any way an artificially created state of affairs within the meaning of NRDC. While difficult to understand, the method claimed appears to be merely a process of psychological analysis and therapy based on analysing the subject’s responses to questions. It solely concerns human interactions and behaviours and is distinguishable from, for example, a method of treating a psychological condition with a drug producing a particular physiochemical interaction with the human body.”
For completeness, what was said of physical phenomena in Grant vCommissioner of Patents(Grant) [2006] FCAFC 120 at [32] was that for patentability to be found a “physical effect in the sense of a concrete effect or phenomenon or manifestation or transformation is required. In NRDC, an artificial effect was physically created on the land.”
Examiner’s Objection
In his second examination report, the examiner argues that the claimed invention is not for a manner of manufacture as being a mere scheme for enhancing the cognitive ability of human beings. In summary the objection states (his emphasis):
“In determining whether the invention as a matter of substance involves patentable subject matter, I have considered the following:
i.The amendments and submissions have clarified that the invention is directed to solving the problem outside of a computer as to ‘how to assess and improve cognitive function’.
ii.The claimed invention when read in light of the whole specification does not result in an improvement in the functioning of the computer itself.
iii.The claimed invention has made no technical contribution to computer devices and merely requires generic computer implementation (e.g. Claim 8 recites a desktop computer, a laptop computer, a computer tablet device, a smart phone device, and a video game device).
iv.The claimed invention when read in light of the whole specification merely uses the computer as an intermediary to carry out the method of enhancing an individual’s cognition.
In the first aspect, the Applicant’s claimed invention is directed to a computer-implemented method which may lend credence to its substance not being purely a mental process. However, as established above, the claimed implementation of the computer is considered generic and is merely configured as means to carry out the method. Therefore, it is important to examine the elements of the claimed invention besides the computer.
In the second aspect, the Applicant submits:
‘… problem of how to assess and improve cognitive function. The Applicant submits that this is clearly a problem of a medical and technical nature, which might alternatively be solved by way of administering medication or direct electrical stimulation of the brain. As these alternative solutions would certainly be considered technical and patentable, the Applicant submits that the methods presented in the present claims should also be considered technical solutions to a technical problem, and defining a manner of manufacture …’
The solutions ‘administering medication or direct electrical stimulation of the brain’ may be considered technical solutions to the problem, but these alternatives do not then automatically, and necessarily, confer their perceived characteristics to the present claimed invention; especially given that these alternative solutions both share characteristics of being concrete, tangible, or of a material nature (e.g. receptor agonists/antagonists or electrical neuron activation).
Similarly, multiple technical and non-technical solutions may exist for a problem. For example, a child may undergo art therapy for ADHD and their cognitive function may be assessed as improved through qualitative reports by the parent. Drawing or painting as a solution would belong distinctly in the fine arts as opposed to the technical arts.
In the third aspect, the Applicant submits:
‘… while these effects are produced by operation of a human-machine interface rather than by medication or direct electrical stimulus of the brain, this does not negate the fact that a direct, measurable and tangible impact is provided by the method on the brain of the subject. As laid out below, there is a demonstrable and direct link between the effects of interference cost-based adaptation and enhanced cognition …’
In the claimed invention, ‘enhancing cognition of an individual by training’ is directed towards the cumulative effect of the act of training. For example, a child learning their multiplication tables by repeated practice would inevitably demonstrate a direct link with an increased capacity for, or enhanced cognition, of such multiplication tables. At the same time, it may be difficult to ascertain a concrete, tangible, or material nature to the learning itself, though its effects may be undeniably real. The child practising their multiplication tables, as shifted from paper onto a computer (or a computer screen), does not further change the nature of this act.
It is for these reasons that the substance of the claimed invention is interpreted to be a generalised scheme because it is directed towards a cumulative effect as implemented on a generic computer.
The substance of the claimed invention does not refer to an implemented solution which directs towards a concrete, tangible, or material nature otherwise reasonably demonstrated by, and as clearly delineated from, ‘administering medication or direct electrical stimulation of the brain’ alluded to by the Applicant.
In view of the above, I am not satisfied on the balance of probabilities that the contribution to the claimed invention is technical in nature such that it produces an improvement in the functioning of the computer or results in a technical effect.”
In summary, I see the examiner’s objection as pointing to the implementation in standard or generic computer technology of a method that while it may improve cognitive function, it does not do so in a manner analogous to a method of treatment claim that involves particular and identifiable physiological effects on the brain. They appear to argue the claimed invention is more like a ‘practice makes perfect’ type method where, by doing certain tasks in the presence of challenges, one should inevitably improve, this not being considered patentable subject matter.
Applicant’s Submissions
I summarise the key aspects of the applicant’s submissions as follows:
·“As the present case does not relate to a business method but instead solves a technical problem outside of a computer, it is submitted that the principles established by RPL are not relevant to the patentability of the present claims.”
·“…the invention of claims 1 to 25 provides an improved method of treatment or therapy, being a method of improving cognition of an individual. The invention specifically relates to determining a difference between an individual’s performance of a task with and without interference, and using that difference to adjust the difficulty level of the task before presenting the task with the adjusted difficulty level back to the individual. The Applicant submits that such a method results in a proven improvement to the cognition of the individual, and can be used to treat cognitive disorders such as inattentive ADHD…”
oThe applicant points to a number of scientific papers (including in Nature) that show improvement in cognitive ability across a variety of applications.
oThe applicant presents evidence of effectiveness including measurements using electroencephalography (EEG) and functional magnetic resonance imaging (fMRI) which show modified brain function.
oThe applicant also points to Food and Drug Administration approval of the relevant technology in the United States.
oThey argue that as a method of treatment or therapy, the claims solve a technical problem of a medical nature. They add that the claims solve the problem through technical means, being an adaptive treatment using specific metrics to alter stimulus, this being a newly discovered relationship between cognitive ability and interference cost.
·“If the claims of the present application were to a method for improving the muscular (rather than cognitive) function of an individual, it is submitted that the claims would be analogous to a method for providing adaptable physical resistance to the individual as they trained, such as by applying automatically adjusting weights on a weights machine. This would clearly be more than a scheme, and would be distinguished from providing the individual with a plan for an exercise program, for example. The claims of the present application also relate to a method for providing adaptable resistance to the individual as they train, where the resistance is cognitive resistance produced by adjusting the difficulty of the task, and where the resistance is adjusted based on a specific factor derived from the individual’s previous performance. Again, this is distinguishable from a scheme or plan of enhancing cognitive function, such as by instructing the individual to learn a language or perform crossword puzzles, for example.”
·Claim 26 additionally relates to a diagnostic test with medical applications that produces a useful result.
·“The claims do not relate to a mere scheme for enhancing cognitive ability of human beings... [instead] a computer implemented method which operates to provide adaptable treatment to an individual… an improved human-machine interface that presents tasks and interference to the user in a particular way… a specific technically implemented solution to the problem… the computer is more than an intermediary, but allows for the difficulty level of the presented task to be automatically and adaptably adjusted based on the analysis of the individual’s performance. This results in a more accurate and consistent treatment environment… the claimed methods involve a computer operating as a piece of equipment for delivering treatment.”
·“The claims provide an automatically adaptive method of presenting tasks, where the difficulty of the tasks is determined based on a specific factor calculated based on the previous performance of the individual, where that factor is the difference in performance of a task with and without interference. The particular processing steps recited in the claims go beyond describing a mere scheme, and instead describe a specific technically implemented solution to the problem.”
·With reference to claim 25, “the claimed steps of ‘presenting a first interface with the first task’ and ‘[receiving] the response to the first interference at substantially the same time as the computer device receives the second response’ are steps that cannot be performed without the use of a computer, as a human clinician could not effectively present multiple interfaces and tasks or receive and process multiple responses at substantially simultaneous times. The claims therefore relate to a treatment method that is more effective than that which could be delivered by a human.”
Consideration

Generally speaking, I see two themes running through the submissions of the applicant. Firstly, the applicant argues the claims to provide for a method of treatment or therapy that I understand is considered to fall patentable for similar reasons to the invention in the Apotex decision of the High Court. Secondly, there is a focus on the use of technology to implement the invention, and while the applicant briefly notes that they do not consider the principles of RPL Central to apply to the present invention, they argue that the presence of the computer operation in the claims also provides for patentability. I will first address the nature of the computer implementation before considering the ultimate question of patentability.
The nature of implementation in the computer
In my discussion of the invention above I have taken a fulsome approach to understanding the manner in which the invention is described by the specification. It is quite clear from this discussion that the method of the claimed invention is performed in standard or generic computer technology. In the claims there are no unique or specialised computer functions that are described, instead the claimed invention includes generic functional limitations in the following terms: presenting, obtaining input data/receiving a response, analysing by determining a difference, presenting iteratively, adjusting, determining a measure, and instructing. Each of these operations involves a computer device executing its well-understood functionality to present, receive and process information. The nature of this implementation is well demonstrated by the discussion in paragraph [0070] of the specification which touches upon the embodiment of the invention in a device comprising a processor, memory, interface, database, input and output which may be a personal computer, handheld or laptop device, personal digital assistant, multiprocessor system, set top box, or game server computer. The specification goes a step further noting that the invention may operate in a Sony Wii Fit, Playstation Move, or Xbox Kinect as well as operation in social network platforms such as Facebook®, Twitter®, Linked-In®, and Google Plus®.
The claimed invention also broadly refers to tasks, interference, and input without any specifics as to how such arrangements of interactive information are provided on the screen, nor physically how input is received. The specification broadly exemplifies this information as tasks including carrying on a conversation, typing/writing, physical fitness (e.g. running, walking, biking), reading, shooting, controlling a character on a screen, playing a sport, formulating a strategic decision, keeping an object in memory or reporting on an object contained in memory and the like. The specification also broadly describes inputs can include but are not limited to stepping on a foot pedal, moving another part of the body (e.g., nodding), running, jumping, etc. Alternatively, the individual can respond vocally by speaking a word or a phrase when presented with a target stimulus. No specifics are provided of input technology, and it appears plain to me that these are all standard operations in gaming type computer environment.
A particular embodiment is also discussed in the specification involving participants operating in a game like environment where the task they are presented with is to drive a car on a curving road. Irrelevant visual signs are presented to the operator as a distraction and measurements are made of differences in performance to drive cognitive training. Beyond this kind of embodiment, the specification does not provide further detail in terms of the means of physical implementation of the methods of the claimed invention.
Turning to the submissions of the applicant, I have no doubt that there is convenience in operating the claimed methods in the computer environment, and I also accept that there is little intellectual purpose in imagining the methods operating outside a computer. In general, it is clear that the methods “could” be performed manually by a team of people (I note the specification mentions performance of the method as a physical/non-electronic board or card game). It is instead more useful with the knowledge of the manner in which the implementation of the invention is described in the specification to recognise that this implementation simply relates to the use of computer technology for its well-known and well understood function, for the purposes of automation of a somewhat complicated method. Mere use of a computer naturally provides benefits of accuracy, adaptability, and scalability, however there is nothing in the specification that points to an improvement or adaptation in the functioning of a computer or an interface such that the method of the claimed invention can be facilitated. It is a classic case of the use of standard computer technology to perform a method, just like the inventions in Research Affiliates, RPL Central, Encompass and Rokt 2.
The applicant points to a human-machine interface that presents information to a user in a particular way, but I cannot accept this assertion. The specification does not describe any “way” that the computer or interface operates to present tasks and interference, but instead clearly characterises the operation by “what” is presented on the screen. In this sense the invention operating in the computer is characterised by the information and method steps themselves and not any element of computer function. While the claims are implemented in a device and thus fundamentally technical to that extent, they do not elevate technicality beyond mere use of the computer as a tool, and thus as a matter of substance the claimed invention is to a method that is merely performed in conventional computer technology. While the computer is a piece of equipment, there is no improvement or adaptation made to that piece of equipment to perform the invention. The computer could be a Nintendo Switch, it could be a mobile phone, or it could be the Facebook® server on which you “play the game” so to speak.
The applicant also submitted that the claims provide an automatically adaptive method of presenting tasks which use a specific factor, thus providing a specific technically implemented solution to the problem. To this submission my points above remain pertinent. Automated adaptation does not manifest in any specific manner in the claimed or described invention. It is left to the person skilled in the art to arrange for the adaptation on the basis of a specific factor that is calculated. Again, the solution of the claimed invention is operated in a technical device (a computer), but as a matter of substance, the computer adds nothing more than its normal function.
In a similar vein the applicant submits with respect to claim 25 that the claimed steps of presenting a first interference with the first task and receiving the response to the first interference at substantially the same time as the computer device receives the second response are steps that cannot be performed without the use of a computer. They note that a human clinician could not effectively present multiple interfaces and tasks or receive and process multiple responses at substantially simultaneous times and that the claims therefore relate to a treatment method that is more effective than that which could be delivered by a human.
I see no reason why a team of human clinicians could not, with some practice and co-ordination, effectively present and receive information at the level described in the claimed invention (potentially as a board or card game). In any event, I do not consider substantial simultaneity adds anything that is more than the use of a computer for its well-known function of automating complicated tasks. Like the inventions in for example RPL Central and Rokt 2, there is little value in imagining the invention operating outside of the computer for sheer practicality reasons. Regardless, without some improvement or adaptation to the computer technology, or some solving of a technical problem in said technology, then patentability cannot be obtained merely via the computer related aspects of the claimed invention.
Having concluded that the implementation of the method cannot confer patentability to the present invention it is reasonable at this stage to give character to the claimed invention as being a method for enhancing and/or determining cognitive ability that is merely put into practice using conventional computer technology. However, this does not end the consideration. It remains necessary for me to consider whether the claimed invention is patentable as a method regardless of its implementation. For example, I must ask whether the method solves a technical problem outside a computer, and also consider whether it is for a method of treatment the kind of which is considered patentable in accordance with the decision of Apotex. Fundamentally these questions turn to a consideration of patentability according to traditional principles.
Characterisation of the invention as a matter of substance
The applicant submits that the present invention provides for an improved method of treatment or therapy or an improved diagnostic test. More specifically the applicant points to the specific steps of the method being determining a difference between an individual’s performance of a task with and without interference and using that difference to adjust the difficulty level of the task before presenting the task with the adjusted difficulty level back to the individual. They note that this provides for proven improvement in cognition. They argue that the invention can be used to treat ADHD and I note that the specification also purports the invention to be somewhat of a potential panacea for cognitive decline or impairment due to many factors that may include general neurological injury, mental health issues, autism spectrum disorders, effects of drugs and alcohol, many conditions generally associated with aging, and even to serve to improve general metrics of cognitive ability and IQ across any range of subject matter areas, age groups, performance levels or occupations. The breadth of potential applications aside, a weight of convincing evidence in presented as to successful practicing of the invention. This evidence includes highly regarded scientific papers, brain scan measurements showing modified brain function, and even approval of the Food and Drug Administration in the United States.
With this in mind, I do not doubt that the invention may be effective when the method is performed on an individual. It appears irrefutable that performance of the invention can have a measurable effect on the human brain, considering brain function before performance and after performance of the invention. My consideration thus boils down to addressing the question as to whether this type of invention can be considered patentable as satisfying the NRDC test in a similar manner to the method of treatment claims in Apotex.
Turning now to the law, the Apotex case confirmed that methods for medical treatment of the human body having economic utility were patentable. The invention in Apotex was concerned with the prevention or treatment of a specific condition known as psoriasis by the administration of leflunomide. Such an invention is clearly a targeted drug therapy of a particular medical condition of the human body. At the other end of a spectrum of “improving the human condition” lie methods which are plainly unpatentable. Purely intellectual endeavours that improve mental and physical capability do not provide for a manner of manufacture according to the principles of NRDC in that they do not provide for material advantage in the useful as opposed to fine arts. Intellectual methods of teaching skills such as long division or playing a perfect forward defence as a batter in the game of cricket would fall into such a category. On this spectrum also sit methods for improving the psychological condition of a patient. A psychologist might use techniques of Cognitive Behavioural Therapy (CBT) to discuss and work through a patient’s anxiety or depression issues, and in doing so improve general brain chemistry and levels of certain endorphins. However, I fail to see how such methods like CBT, in themselves, could satisfy the requirements of NRDC, even though I accept that one could observe differences in brain function before and after treatment using brain scan technology.
A somewhat similar issue was discussed in the abovementioned decision of a Deputy Commissioner of Patents in First Principles [2011] APO 1, where he concluded that a method of psychological analysis and therapy would not satisfy the requirements of NRDC as it would solely concern human interactions and behaviours and is distinguishable from, for example, a method of treating a psychological condition with a drug producing a particular physiochemical interaction with the human body. Such thinking points to a distinction in patentable subject matter between on the one hand, patentable inventions that target a particular physical phenomenon such that a material effect/advantage can be identified, and on the other unpatentable inventions that generally improve human though process/mood/mental state/intellectual ability.
While I acknowledge measurable effects on brain function by the present invention when embodied and implemented, I cannot agree that this lends sufficient force to satisfy the requirements of NRDC. There is no particular medical or physical condition targeted by the present invention, instead the invention seeks to determine and improve cognitive ability in the most general of senses. Alternatively worded, the invention improves the “intelligence” of an individual through focus on a particularly arranged challenge. This challenge is effective at enabling an individual to practice operating in the presence of distraction and to improve their skill in this area, but it does just that, improve the mental ability of a person. I cannot see how improving mental ability in the general sense provides for a material advantage in the useful as opposed to fine arts. A change in physical state of the brain on my reckoning, would be measurable for any number of human physical and intellectual pursuits once practiced to a sufficient degree. While it may be inventive to drive training and improvement on the basis of the described “interference cost”, I see it as purely a matter of intellect to practice your skills in the presence of designed interference. No particular physical or concrete phenomenon is identified in the present invention that is the target of the method, and contrary to the submission of the applicant I cannot distinguish the present invention from a scheme or plan of enhancing cognitive function such as by instructing the individual to learn a language, perform crossword puzzles, or to play sudoku to stall cognitive decline.
The generality of the claim as not relating to a physical phenomenon is also reflected in the definitions provided by the specification of key phrases. For example: “cognition” includes problem solving ability, decision making and intelligence; “targets” may be concrete manifestations or abstract thought processes; “tasks” refers broadly to goals and/or objectives; “interference” may be visual, auditory or mental; and, analysis can involve the Myer-Briggs personality test. The invention is thus clearly of an abstract and intangible nature.
I therefore conclude that the proper characterisation of the present invention is to a mere scheme for enhancing cognition/mental capability of an individual using a difference between an individual’s performance of a task with and without interference and using that difference to adjust the difficulty level of the task before presenting the task with the adjusted difficulty level back to the individual. The invention as a matter of substance does not provide for a material advantage in the useful arts as required by NRDC, and clearly does not address any identifiable technical problem. The invention instead addresses a general problem of cognitive/intellectual decline in an abstract and intangible way. The claimed invention is not for a manner of manufacture.
For completeness I also note the applicant’s submission that if the claims of the present application were to a method for improving the muscular (rather than cognitive) function of an individual, it is submitted that the claims would be analogous to a method for providing adaptable physical resistance to the individual as they trained, such as by applying automatically adjusting weights on a weights machine. This argument doesn’t help as it does not speak of an invention with sufficient specificity to be instructive. A method of automatically adjusting a machine may well provide for an improvement or adaptation to that machine. Whether a method involving the changing of weights is a manner of manufacture would also still require the same considerations with respect to NRDC and Apotex. Further relevant guidance that distinguishes between material improvement to physical things as opposed to improvement to educational instructions to an individual can be drawn from a comparison of the inventions in Pitman’s Application and Dixon’s Application.
Remainder of the specification
I have carefully considered the entirety of the specification and summarised the key parts earlier in my decision. There is nothing in the dependent claims or remainder of the specification that modifies or improves upon the position put forward by the applicant. The use of the computer technology in the present invention is clearly conventional, and the overarching proposition put forward by the applicant that the invention is a method of treatment, therapy or diagnosis that satisfies the requirements for patentability cannot be made good by amendment. No physical phenomenon is targeted by the present invention, the specification making it clear that the invention addresses a general problem related to cognitive/intellectual ability that is considered by the specification as somewhat of a panacea for cognitive improvement. I see no basis upon which an amendment could be formulated to overcome the objection that the claims are not for a manner of manufacture.
NOVELTY
For the purposes of subsection 7(1) of the Patents Act, an invention is to be taken to be novel when compared with the prior art base unless it is not novel in the light of any one of the prior art information.
It is well established that the general test for anticipation is the reverse infringement test. The classic formulation of this test is that given by Aickin J in Meyers Taylor Pty Ltd v Vicarr Industries Ltd [1977] HCA 19 at [20]; 137 CLR 228 at [235]:
“The basic test for anticipation or want of novelty is the same as that for infringement and generally one can properly ask oneself whether the alleged anticipation would, if the patent were valid, constitute an infringement.”
This test is satisfied if the alleged anticipation discloses all of the essential features of the invention as claimed (Nicaro Holdings Pty Ltd v Martin Engineering Co [1990] FCA 40 at [19]; 16 IPR 545 at [549]). To meet this requirement, the prior art must contain “clear and unmistakable directions to do what the patentee claims to have invented” (The General Tire & Rubber Company v The Firestone Tyre and Rubber Company Limited [1972] RPC 457 at [486]).
Examiner’s Objection
In his second examination report the examiner objected to the claims as lacking novelty and/or inventive step in light of document D2, being patent document US 20060292531 A1. The objection to claim 1 is as follows:
“D2 discloses:
A computer-implemented method for enhancing cognition of an individual by training the individual to process interference in conjunction with a task (figs. 2-3 (task 218, interference 220, computer implementation 224), para. [0082]), said method being implemented using a computer device comprising an input device (figs. 2-3 (224), para. [0082]), said method comprising:
using the computer device, presenting at least a first task having a difficulty level to the individual, the first task requiring a first response from the individual via the input device (figs. 2-3 (218), para. [0081]);
using the computer device, present at least a first interference with the first task, the first task requiring a second response from the individual to the first task in the presence of the first interference via the input device (figs. 2-3 (220), para. [0081]);
wherein the first interference diverts the individual’s attention from the first task and is configured as a distraction and/or an interruptor (figs. 2-3 (220), para. [0081]);
obtaining in said computer device input data indicative of the individual’s first response and second response to the at least a first task (figs. 2-3 (224), para. [0082]);
analyzing in said computer device the individual’s performance by determining a difference between the individual’s performance of the first task without interference versus with interference (figs. 2-3 (306), para. [0085]);
using the computer device, presenting the at least a first task and the at least a first interference and obtaining in said computer device the first response and the second response in an iterative manner (figs. 2-3 (218, 220), para. [0081] “… repetitive …”);
using the computer device, adjusting the difficulty level of the at least a first task based upon the individual’s performance determined in the analyzing (figs. 2-3 (308, 310, 312, 314, 316), paras. [0085]-[0089] “… increased level of difficulty …”);
using the computer device, presenting the first task having the adjusted difficulty level to the individual (figs. 2-3); and
providing an output from the computer device indicative of the individual’s cognitive ability (figs. 2-3 (318), para. [0090]).
Therefore, claim 1 is not novel (and lacks an inventive step).”
Applicant’s Submissions

The applicant argues that document D2 does not disclose “analyzing in said computer device the individual’s performance by determining a difference between the individual’s performance of the first task without interference versus with interference” and “adjusting the difficulty level of the at least a first task based upon the individual’s performance determined in the analyzing”. They note that it is novel (and inventive) in light of document D2 to adjust the level of difficulty on the basis of this “inference cost”. As relevant features are present in each of the three independent claims, the applicant submits the claims are novel.
Consideration
Document D2 discloses a method similar to that of the applicant’s invention involving training cognitive skills by increasing loading, distraction and pace while performing a cognitive task (abstract). The method is discussed as the provision of a repetitive mental task which is to be performed, wherein an increase in difficulty of that repetitive task is applied over time (paragraph [0081]). The document notes similarly to the present invention that any suitable electronic device may be used and may include a child’s game device or even a calculator or cellular phone ([0082]). The nature of the response to the repetitive task in terms of timing and accuracy is used to drive an increase for example, in intensity of stimuli or pace of the repetitive task thus increasing the load on the individual over time ([0083]). In doing so the objective of document D2 is to increase mental burden on an individual to force the individual to use less of their mind for handling the original repetitive task, with an understanding that the individual can carry out the primary task unburdened with other mental activity ([0084]).
Paragraph [0088] provides some further detail in relation to the driving of increased difficulty when the individual demonstrates competence in terms of a pass level of speed and/or accuracy of a response. It is also noted that feedback may be provided to the individual in the form of a score, time, or passing information for relevant tasks, along with kinaesthetic or verbal feedback ([0090]).
Considering this disclosure, it appears that it is the degree of success in a particular iteration of the repetitive task and distracting stimulus that drives an adjustment in the level of difficultly on a subsequent iteration of the task. In other words, adjusting the level of difficult in document D2 of a first task is done on the basis of an absolute level of success of the completion of that first task. As pointed out by the applicant, the claimed invention is limited to obtaining the difference between the individual’s performance with and without interference and using this difference (or in the applicant’s words “interference cost”) to adjust the level of difficulty of the first task. The use of an absolute success, and not the use of an interference cost, is what is disclosed in document D2. I agree with the applicant that document D2 is not a novelty disclosure.
While the examiner has not considered separately whether this use of the “interference cost” feature is inventive, I accept on the information before me that an inventive step objection would not apply, there being nothing to suggest the relevant feature is common general knowledge. However, given my finding in relation to manner of manufacture, this finding is of little significance.
CONCLUSION
The claims of the invention are not for a manner of manufacture, and I see no possibility of successful amendment. I refuse the application.
Dr N. R. Madsen
Deputy Commissioner of Patents