Can You Patent an Abstract Idea?
You can patent an abstract idea if you can show it arose in your mind, but what exactly is an abstract idea? There are a number of distinctions between physical phenomena and laws of nature, which are the two categories of “abstract ideas” covered by the patent laws. But can you patent a mathematical formula? In some cases, the answer is a resounding “yes,” but there are exceptions, which we’ll discuss below.
Laws of nature
In this article, we’ll discuss how patent eligibility is determined and the problems inherent in defining “natural” terms. The article will discuss how the Supreme Court has struggled to assign legal meaning to “natural” terms, and how this may lead to misunderstandings about patent eligibility. Using these terms as a guideline to assess patent eligibility is helpful, but it’s not without challenges. We’ll also discuss the implications of judicial decisions, including those that rely on a broader understanding of natural complexity.
First, patents require a creator. Often, the word “discoverer” implies the first person to find a new thing or use it. This means that Einstein couldn’t receive a patent for the equation E=MC2. But courts have consistently ruled that patents cannot be granted based on the laws of nature. As such, any new invention must conform to these laws. By limiting patents to natural phenomena, patentable ideas are often rejected.
While the Supreme Court has not definitively defined what constitutes an abstract idea, the majority of cases have found that natural phenomena and laws of nature are not patentable. Patent eligibility for natural products, however, does not depend on their scientific or technological characteristics, so patenting an abstract idea may be the best option for an inventive product. But patent eligibility for “laws of nature” and “abstract idea” can be difficult, so the Supreme Court has provided a broader definition.
This reasoning reflects the Court’s concerns about the patent system. The Court’s ruling in Mayo v. Myriad explains how the courts have consistently rejected patents that rely on laws of nature. The patent claims in Mayo start with a law of nature, but then direct doctors to collect data and draw inferences. Neither of these steps adds any novel steps to the invention.
The Supreme Court has repeatedly cited the “law of nature” as a test to assess patent eligibility. But the courts’ use of the term depends on the scientific framework used in interpreting patent eligibility. Similarly, in Alice v. Mayo, the Supreme Court found that Newton had not been able to patent the law of gravity, because Einstein’s theory makes it impossible for Newton to claim a patent based on the principle.
Although the reasoning in Benson does not appear to be entirely consistent with the Federal Circuit’s ruling in Natural Alternatives, it is consistent with the Mayo and Bilski cases. In other words, the mental steps doctrine is consistent with the rejection of laws of nature and abstract ideas. Ultimately, the Federal Circuit, the court in Natural Alternatives, and the Supreme Court have recently begun to relax the restrictions on patents. While it’s too early to make any conclusive judgment, the decision could signal a fading tide in “abstract ideas” cases.
The Federal Circuit’s experiments with patenting abstract ideas have never been endorsed by the Supreme Court, but several justices have expressed concern about the current rules governing abstract idea patentability. The court has decided to revisit the case known as In Re Bilski, and that will likely give it the opportunity to tighten the rules for patenting abstract ideas. In the meantime, it is important to understand how abstract ideas are classified.
Many legal scholars consider that natural laws, phenomena, and products are excluded from patent eligibility. The courts have refused to provide a clear framework for assessing patent claims based on natural laws and phenomena. In other words, a patent for an “equation” must be based on manmade representations of nature and can’t be described by natural laws alone. In fact, the Supreme Court has not even provided a framework for patent claims based on natural concepts.
A recent Federal Circuit decision addressed the issue of patenting abstract ideas. This case involved four patents related to a fare collection system using bank cards, instead of cash. The patents sought to protect a new way to process and store fares on trains. The Federal Circuit’s reasoning for rejecting these patents was based on a “known unknown” standard, a more stringent standard than the one it used in Alice.
This synthesis is a daunting task, but the Federal Circuit has published over 100 decisions on the abstract idea test. The challenge is deciding which of the two is correct. Here are a few key factors to consider:
The mental steps doctrine excludes certain steps performed in the human mind. This doctrine arose before computers were widely used for business purposes. This doctrine applies to mathematical procedures that can only be performed mentally, as well as human judgments guided by mathematical considerations. The mental steps doctrine also requires no disclosure of an alternative method. Essentially, patents for abstract ideas are based on a human’s ability to make certain decisions in the first place.
A recent case addressed the issue of whether abstract ideas are protected as intellectual property. In Alice Corp. v. CLS Bank Int’l, the Court held that “abstract ideas” do not qualify for patent protection under 35 U.S.C. SS 101. A second case that has raised this issue is Bilski v. Kappos. As the New York Times points out, this case presents a more narrow definition of an abstract idea.
The USPTO’s prohibition on patenting abstract ideas expanded to software. Some forms of software are considered Abstract Ideas by the USPTO because they are simply general implementations of a mental process or mathematical concept. This means that inventors cannot turn abstract ideas into patentable ideas when they implement them on a general computer. As a result, this prohibition on patenting abstract ideas is logical and well-intentioned.