Common general knowledge
31 Dynamite's submissions about the primary judge's errors in respect of the common general knowledge are equally ill-founded.
32 Dynamite's first focus in this regard was [112] of the reasons of the primary judge. It is necessary to set the out the paragraph in full to understand the lack of substance in the complaint. The primary judge said:
Aruze contends that it was well known to game designers as at the priority date that bonus features of gaming machines could be influenced by parameters applied in the ordinary run of play. In the case of multipliers, which are applied to a win amount to increase the player's win, they were generally calculated by averaging the play parameters from the main game. In support of that assertion, Aruze points to a game called Two-up from the 1980s, which triggered a free game bonus called "Hold and Spin" if a certain non-paying combination was obtained, and Dolphin Treasure, from about 1994, which offered fifteen free games if certain combinations of scattered treasure symbols were obtained. Aruze also relies on a metamorphic game called Scatter Rug as being part the common general knowledge. In that game, if one of a range of scattered rug symbol combinations was obtained, one of four lights on the machine was illuminated. Consecutive plays resulting in the relevant combinations caused the other lights to illuminate and, if all four lights were illuminated following a four play sequence of obtaining the relevant combinations, the player was guaranteed the total of the wager made over the four game sequence. If a play occurred whereby the combination did not appear, all illuminated lights were extinguished and the sequence was cancelled. Notwithstanding Dynamite's contention to the contrary, I am satisfied by the evidence of Mr Daley that each of Scatter Rug, Two-up and Dolphin Treasure was part of common general knowledge. The games were available in Australia prior to the priority date and I am satisfied that game designers were familiar with the products of their competitors.
(bold type in original)
33 Dynamite said it was important to understand that the primary judge was merely recording Aruze's submission that "[i]n the case of multipliers, which are applied to a win amount to increase the player's win, they were generally calculated by averaging the play parameters from the main game" and had not made any finding to that effect. Alternatively, if the primary judge had made any such finding Dynamite said there was no evidence to support it and the finding was contrary to the evidence.
34 Both aspects of this submission must be rejected.
35 Read reasonably in context it is apparent that the primary judge accepted all of Aruze's submissions as recorded at [112], including that "[i]n the case of multipliers, which are applied to a win amount to increase the player's win, they were generally calculated by averaging the play parameters from the main game".
36 This finding, moreover, was amply supported by the evidence which the primary judge identified. One critical matter Dynamite appears to be overlooking is that there was no dispute on the evidence that every gaming machine in Australia has to provide a minimum return to player (or RTP) which is worked out on the basis of averages. The primary judge explained this in the reasons for judgment including:
• At [44] when referring to Mr Olive's evidence that:
Once the rules of the game have been decided, the probability calculations of each winning combination applicable in the game, that is, the win frequency, need to be worked out. Where gaming machines are operated in a regulated environment, the probability calculations are restricted as each game must provide a specific minimum theoretical return to the player. The play table is then developed. That is dependent on the game probability calculations and is also directly influenced by any required theoretical return to the player in a regulated environment.
• At [109] when referring to the Australian/New Zealand Gaming Machine National Standard (the Standard), the contents of which the primary judge found were "background knowledge available to all in the trade in considering the making of new games, or the making of improvements to old games". It was not in dispute that the Standard required a minimum RTP which depended on all features of gameplay being monitored and the average overall return to players to meet the required minimum.
37 In this context, the evidence of Mr Daley on which the primary judge relied at [112] did not call for further explanation. The simple point is that, on the evidence, there was no dispute about the fact that every aspect of the operation of a gaming machine was "generally calculated by averaging the play parameters from the main game". Mr Causley, who was called by Dynamite, acknowledged this as a proposition fundamental to how gaming machines operate. As he put it, while a player could not observe that the functioning of the machine was based on an average, he knew that was what "it [the gaming machine] must be doing" as "that's the only way that would keep the percentage linear and hence, for the game to be approvable". In the applicable regulatory environment in Australia, accordingly, everything has to be "generally calculated by averaging the play parameters from the main game". Without doing this, there would be no way to maintain the average RTP required by the Standard for the gaming machine to be able to be approved. Dynamite's unstated assumption appears to be that multipliers somehow operate outside the fundamental RTP requirements and thus might not be "generally calculated by averaging the play parameters from the main game". That assumption is contrary to the evidence. It follows that all of Dynamite's submissions that the other well-known games which the primary judge found to be part of the common general knowledge (findings which Dynamite does not challenge) were somehow not based on "averaging" are misconceived. It also follows that equally misconceived are all of Dynamite's complaints about the lack of any evidentiary foundation to support the primary judge's findings, as well as Dynamite's complaints about a lack of analysis of that evidence by the primary judge. The complaints pay no regard to the detailed identification of the evidence and reasons cross-referring to that evidence which the primary judge provided.
38 For these reasons the attack on the primary judge's approach to the common general knowledge in [112] must fail.
39 Dynamite's other focus was [114]. Again, the whole paragraph should be set out so that the lack of substance in Dynamite's complaints can be understood.
40 The primary judge said at [114]:
Claim 1 is for gaming apparatus having components for monitoring gameplay and the occurrence of game events and for guaranteeing that a game event will trigger within a set amount of gameplay. Money Back and Cashcade were both part of the common general knowledge. The Standard prescribed the rules for metamorphic games and token accumulation games, including that the number of tokens accumulated and the number needed to trigger a bonus feature be displayed. Thus, not only was each integer of claim 1 within the common general knowledge, but the combination was also part of the common general knowledge. Any gaming apparatus will have components for monitoring gameplay and the occurrence of game events. Guaranteed events in the nature of awards, where other events, such as wins, did not occur, were part of the common general knowledge. Similarly, indicator requirements were part of the common general knowledge. The idea that a gaming apparatus could be designed to enhance player interest by guaranteeing an award to a player if another event did not occur within a set time was known to a person of ordinary skill in the art. The Standard required that there be an indication to players how far a metamorphic sequence had progressed and the total number of games in the sequence. That is to say, the Standard required that games indicate to players the amount of gameplay remaining before the guaranteed event occurred.
(bold type in original)
41 Dynamite contended that the key finding in [114] that "not only was each integer of claim 1 within the common general knowledge, but the combination was also part of the common general knowledge" was unsupported by any evidence and unexplained by the primary judge in [114]. Neither contention carries weight.
42 Consistent with its general approach, Dynamite has failed to recognise the fact that the primary judge has found three things to be part of the common general knowledge - the Standard, the game Money Back and the game Cashcade. The RTP requirement of the Standard has been referred to above. At [110] the primary judge had also explained that:
According to the Standard, metamorphic games must display to the player sufficient information to indicate the current status towards the triggering of the next metamorphosis of the game.
43 In addition, the primary judge had explained at some length at [77] - [82] the features of Money Back and Cashcade all of which, he found, formed part of the common general knowledge. Hence, he recorded that, amongst other things:
• Money Back required that the machine's microprocessor would monitor the state of the series of games played by the player and the amount wagered over that series. During the operation of the sequence, the machine separately displayed the current length of the sequence and the current value of the sequence (at [77]).
• The distinguishing feature of Cashcade was that the bonus jackpot was guaranteed to be won when the accumulated money value achieved a randomly chosen value between the fixed minimum and maximum. The players could see the accumulated total increase each time a linked machine was played. The Cashcade system was "deterministic" in that, as play occurred and the incrementing value of the proportion sent to the controller approached the win value, a win was guaranteed to occur when the two values were equal. That is to say, a win was determined to occur within a set range of units wagered (at [82]).
44 These findings set the context for the conclusions in [114] that every integer of claim 1, whether considered in isolation or in combination, formed part of the common general knowledge. In light of the earlier findings about the Standard, Money Back and Cashcade, the conclusions are unassailable. Dynamite's submissions amount to no more than mere repeated assertion irrespective of the evidence on which the primary judge expressly relied and the primary findings he made, none of which are challenged. The assertions of error, both of reasoning and lack of reasoning on the part of the primary judge, simply cannot stand. Indeed, it is difficult to know what more the primary judge could have said to make the point that there was nothing inventive at all about claim 1 not only because there was no inventive step but also because there was actually no step at all. Every aspect of claim 1 was a mere re-hash of known things in known combinations. That is the point the primary judge was making and it is one amply supported by the evidence.
45 The same conclusions undermine each of Dynamite's complaints about the manner in which the primary judge dealt with every one of the other claims. The essence of the complaint is that the primary judge failed to consider the particular combination in each case and that the overall conclusion in [150], which expressly refers to the combinations of every claim, was unsupportable by the evidence and unsupported any reasoning. Both aspects of the complaint fail for the same reasons. The point the primary judge was repeatedly making, by describing the claims as not inventive, well-known, in the Standard or otherwise, was the lack of any step at all, let alone an inventive step, in the claims. In this regard, none of the claims fares any better than the other. For example claim 9, which Dynamite emphasised, as Aruze put it, involved "mere fiddling with a known combination of known integers". The evidence supports this, and thus also supports the primary judge's conclusion that claim 9 is in no different position from any other claim. The same might be (and, by the primary judge, was) said of claim 21 and, indeed, all of the other claims.
46 Against this background, the primary judge's conclusion at [150], that "the features of the claims of both of the Patents were all matters of common general knowledge, including in combination, before the priority date" is unassailable. As the primary judge put it in [150], nothing claimed, looked at in isolation or as a combination, involved anything more than the "application of existing ideas", there being "no barrier crossed" and thus no "inventive step". It is true that the primary judge, if he had been so minded, could have laboured the point by repeating factual findings made in earlier parts of the judgment when dealing with each individual claim or by identifying yet further authorities explaining that to be inventive a combination must itself result in something new (for example, Fallshaw Holdings Pty Limited v Flexello Castors and Wheels PLC (1993) 26 IPR 565 and Elconnex v Gerard Industries Pty Ltd (1992) 25 IPR 173). But the primary judge certainly did not need to do so to adequately explain his reasons. Nor, in the circumstances, was it even desirable for the primary judge to do so. The reasons are perfectly intelligible on a reasonable reading of the whole.
47 Dynamite's other complaints used to shore up its case warrant equal short-shrift.
48 There is simply no basis for the submission that the primary judge impermissibly used hindsight to reach his conclusions. Nothing in the reasons suggests this. It seems to be a submission based on misplaced hope rather than the reality of the primary judge's reasons.
49 Claim 6, as described by the primary judge at [119], is:
for the apparatus of claim 1 or claim 2, wherein the monitored event or guaranteed event is a feature event. The Standard includes bonus prizes in its list of features. That indicates that prize wins and feature events are not mutually exclusive. In any event, feature events other than prize wins were plainly part of the common general knowledge and were used to enhance player interest as at the priority date.
50 Dynamite alleged error on the basis that, in context, feature events cannot be prize wins. Assume this is so. The reasoning in [119] still stands. As the primary judge said "feature events other than prize wins were plainly part of the common general knowledge and were used to enhance player interest as at the priority date" and, in combination, claim 6 involves no inventive step (at [150]).
51 Dynamite's complaint regarding the lack of findings about the person skilled in the art is also ill-founded. The answer to the complaint is that the matter was never in issue. Both parties called game designers to give evidence. No-one put in issue that the person skilled in the art was a game designer who was aware of the Standard and other games in the industry.
52 The notion that there was no evidence from a person skilled in the art which supported the primary judge's findings is incorrect, as explained above. In any event, as Azure pointed out, questions of obviousness are ultimately a matter for the court "irrespective of the opinion expressed by any number of experts" (Minnesota Mining and Manufacturing Co v Tyco Electronics Pty Ltd [2002] FCAFC 315; (2002) 56 IPR 248 at [50]).
53 To the extent that Dynamite submitted that the primary judge's observations in dealing with individual claims that certain matters were "assumed" to be part of the common general knowledge (for example, at [115], [116]) it is apparent that the primary judge meant only that the claims themselves assumed the existence of certain things as common general knowledge. The point being made is that the inventions as claimed say nothing about how the features are to be implemented because, as found at [105], the software and hardware components are all well-known.
54 In respect of the innovation patent, the same challenges are made (that is, conclusions said not to be supported by evidence and no reasoned analysis) and the same answers should be given. The primary judge identified the correct test (as Dynamite acknowledged) at [96] and then applied it in conventional terms, based on the evidence and the earlier findings, at [145] - [149]. The failure to repeat the earlier findings to drive home the lack of any, let alone substantial, contribution to the working of the invention, is no failure at all.