(ii) Consideration
69 It cannot reasonably be said, in our view, that the primary judge gave undue weight to the construction placed by Dowsett J on the Neurizon patent in Neurizon (No 1) or that she misapprehended the burden of the principles to be applied.
70 Properly, for the reasons given by her Honour, it was appropriate for her to follow Dowsett J's conclusions on the construction of the Patent unless she was convinced it was clearly wrong: but note the principles stated in Pearce & Geddes, Statutory Interpretation in Australia, [1.6]-[1.7] (5th ed, 2001). Nonetheless the primary judge considered it was necessary that Dowsett J's "determination on questions of construction be considered in light of the respondents' submissions": at [35]. In the event, the primary judge quite obviously gave independent consideration to the meaning of "an elapsed period" in light of the submissions and evidence before her.
71 Neither can it reasonably be said, in our view, that her Honour misapprehended the principles of construction relevant to the case before her. Her Honour's summary of those principles betrays no error.
72 The short issue raised by the infringement appeal is whether the construction given to "an elapsed period" in claim 1 was correct.
73 Three witnesses, whom her Honour considered were skilled addressees, gave evidence as to the construction to be considered in relation to both infringement and fair basing. William Patrick Miller ("Miller"), who was called by Jupiters but who was not regarded as an independent witness whose evidence was entirely objective in all aspects, considered that in light of the specification an elapsed period meant a predefined period of time, of known duration and significantly longer than an EGM game cycle, during which multiple turnover events may be collected and used in a probability calculation. He regarded the preferred embodiment and two tables in the specification illustrating turnover being recorded in a 30 second "sliding time window" as indicating clearly what the Patent's author intended.
74 Arnold Barry Kopff ("Kopff") was called by Neurizon. Having noted Jupiters' claims, he stated in his second affidavit (at pars 40-41) that:
"40. In my opinion, there is nothing disclosed in the specification in the Patent that requires the 'elapsed period' to be longer than the length of time it takes to play one game on an EGM. Further, that interpretation is not required in order to distinguish the patented invention from any prior art referred to in the specification, or any other that forms part of the prior art base.
41. None of the prior art uses turnover on a single EGM over any elapsed period of time in order to weight that EGM's probability of winning the jackpot. All of the prior art that I have examined (that takes into account the amount wagered) always refers to just the amount wagered on the current game. In no prior art that I have seen is time a factor in the probability equation in the decision whether or not to award a jackpot prize."
75 Johnson, whose evidence her Honour found "helpful on many topics" also addressed construction:
"46. [T]here is nothing disclosed in the specification that requires that elapsed period to be longer than the game play of the EGM.
47. Furthermore, that interpretation is not required in order to distinguish any prior art referred to in the specification (or that otherwise forms part of the prior art base).
48. None of the prior art, either cited by the Patent, or cited against the Patent in the Former Proceedings or these proceedings, has the absolute probability of win of an EGM being dependent on the turnover on that and only that EGM during an elapsed period.
…
52. The fact that the Draw Period (in the Neurizon method) [i.e. the period between attempts to award the jackpot] can be independent of game play adds to the level of fairness in these situations, as each EGM participates in the jackpot draw, based on turnover in the Record Period, rather than based on turnover on games played.
53. However, that does not require any limitation of the elapsed period in the claims to a period of time longer than game play.
54. Nothing in the Patent specification requires the Record Period (that is the elapsed period during which turnover is recorded) to be longer than any arbitrary length of game play.
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60. There are many possibilities for a gaming system or method to determine an elapsed period, and such possibilities should be clear to those skilled in the art, following the teaching of the Patent. Provided the gaming system, method or EGM actually determines turnover by reference to an elapsed period (and not as a discreet event, such as a single game), it would fall within the plain meaning of the term 'during an elapsed period' in the primary claims of the Patent."
76 It would seem that the primary judge approached the matter on the implicit basis that, as the specification and in particular the preferred embodiments incorporated the elapsed period integer of claim 1, it was appropriate to ask whether the manner in which the integer was described or disclosed excluded the period of a game cycle from the compass of the term "an elapsed period" or, alternatively, required an elapsed period to extend beyond the period in which one game was played. Her Honour found that no such exclusion or requirement was apparent on a fair reading of the specification.
77 In our view, this reading of the specification was clearly correct. It is fair to say that in the prior art the specification accentuated perceived limitations of game based systems, and that in the advantages claimed for the embodiments, it emphasised the capacity the invention had to overcome or ameliorate such limitations. It equally is fair to say that the actual illustrations given of an elapsed period are of periods longer than what on the evidence it would take to play one game and, usually, are of fixed and predetermined duration. However, what is notable about the descriptions and illustrations given of "an elapsed period" in the specification is that they are illustrative and permissive, not prescriptive. It is acknowledged expressly, for example, that there are "various alternative implementations" that achieve the same or similar outcome as the preferred embodiment. All that is prescribed is that there be an elapsed period and that term has the meaning we have previously indicated it has. Beyond this there are specified and unspecified possible, permissible, or what might be considered to be preferable implementations.
78 It is for the Court not the experts to interpret this patent: see Flexible Steel Lacing at [81]. It is the case, though, that we read it in this respect "in the same way" as Kopff and Johnson and as not excluding the period of a game cycle.
79 We would add that, while an implementation using an elapsed period of fixed duration extending over a period in which a number of games is likely to be played may in fact provide the preferred way of overcoming perceived limitations in game based systems, or of securing the claimed advantages of the embodiment, the specification does not expressly or impliedly require the use of such a period. It is designedly not prescriptive in this respect.
80 A skilled addressee reading the specification as a whole would conclude that it differentiated between gaming systems characterised by the probability of an EGM's winning a prize being dependent at least upon some of the amount wagered on that EGM "during an elapsed period" and those in which the probability of an EGM winning was dependent upon at least some of the money wagered on that EGM in the playing of a single game. The one system makes the relevant probability dependent on what occurs during the passage of a determined past period of time; the other makes it dependent on what transpires on the occurrence of a single event (i.e. a particular game). The specification's prior art teaching especially in relation to Hyperlink makes plain this distinction.
81 The expression "an elapsed period" as defined by Dowsett J and accepted by her Honour is neither uncertain nor ambiguous. Though it presupposes that termini would be fixed in some fashion so as to provide the boundaries of a particular "elapsed period" - a need recognised by the primary judge and by Johnson (a skilled addressee whose evidence was accepted) - a claim did not, and did not need to, specify a method for determining those boundaries although some did. The expression has a wide meaning. The evidence of Johnson indicated that there were many ways in which an elapsed period might be determined in a gaming system and that this would be clear to those skilled in the art from what is taught by the Patent. This again was accepted by her Honour. We see no reason to disagree with Johnson's view. The duration of an elapsed period can be fixed by the passage of a specified or by a random period of time, or by two specified events.
82 A consequence of the logic of this definition is that, in respect of a single event taking a period of time to occur, that event can for present purposes be focussed upon in either of two ways - first as a single event; secondly, as a bounded period of time in which the event occurs. In response to a fair basing suggestion to the contrary, the primary judge explicitly accepted that an elapsed period could be the period of a game cycle. However, in so doing her Honour was addressing a system in which probability was not game (or single event) based as such, but rather one in which it was based on what transpired in an elapsed period. Nothing that we have said here, or that the primary judge said, requires it be concluded that the Hyperlink system infringed the Neurizon claim. Its system was made dependent on an event not on the bounded period of time of an event.
83 When one turns to the Cougar system it is clear, in our view, that its systems' probability of winning is dependent upon at least some of the amount waged on an EGM "during an elapsed period". It may be accepted that Jupiter's object in employing the particular methodology used by Cougar - the use of QCOM polling to detect successive turnover meter responses - was to ascertain the amount wagered on a particular game (although, as her Honour accepted, the evidence was that it could not do this with complete accuracy). Nonetheless the methodology itself was not game based. It did not use a game play meter. And, as has been accepted by Jupiters, the once-a-second polling employed was not synchronised to game play. Rather, as the primary judge correctly concluded, it depended upon measuring the difference in turnover between successive turnover meter responses. It used an elapse of time method to derive the required information as to the amount wagered on each particular EGM and the probability of win was dependent upon at least some of the amount wagered on that EGM during an elapsed period.
84 Jupiters seeks to deflect the obvious implication of this conclusion by submitting that how the amount wagered is ascertained is irrelevant to the question of infringement. What they say is important is the characterisation of the amount wagered itself: "Is it characterised by reference to game play or by reference to an elapsed period not being referred to game play?".
85 The basis of Jupiters' submission would seem to be that a skilled addressee, having read the prior art and the stated advantages in the specification as part of reading the specification as a whole, would understand not only that the invention was not game based but also that it excluded from an apparent time based system those instances where the system was in fact using elapsed periods to identify, and thus base probability on, the amount wagered on a single game.
86 It is the case that both the prior art and the stated advantages refer to the limitations of game (or game cycle) based systems and of the advantages of basing probability of, and the trigger for, a win on betting over a period of time as distinct from the last game played. This, though, provides no justification for determining that the terms of claim 1 are not clear and unambiguous. What Jupiters is seeking to do is to add to those terms "glosses drawn from other parts of the specification": Welch Perrin & Co Pty Ltd v Worrel (1961) 106 CLR 588 at 610; see also Flexible Steel Lacing Co at [73]-[74].
87 The question posed by Jupiters impermissibly redefines the term "an elapsed period". More importantly, it ignores the actual claim of the Patent and the question it poses here: "Is the probability of winning using the Cougar system dependent upon at least some of the amount wagered on that [EGM] during an elapsed period?" The answer to this must be "yes". It uses the elapsed period between two meter responses to ascertain the amount wagered albeit, because of the relationship of the frequency of the QCOM poll to the time taken to play a game, that amount will ordinarily be the amount played on a particular game.
88 The Cougar system used the fourth integer of the Neurizon patent's claim 1 and, thus, infringement of claim 1 and dependent claims is established.