Alicide. The IP crime of the century.

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When it comes to clarity in court-made law, I don’t expect much. And, after scratching my head for a few months over the Supreme Court decision in the Alice case, I think my low expectation has been justified.

Can you blame me?

The Court built its Alice decision on an old legal rubric—the so-called “abstract idea”. They seem to view it as a wicked thing, if it’s what you’re trying to patent. That nasty phrase first got slipped into the court decisions way back in the twentieth century. Or was it earlier? Ever since then, whenever this “abstract idea” nonsense gets channeled into a court opinion, you can count on the patent being turned into dead meat. And recently the slaughter of patents by lower courts, armed with Alice, is at a fever pitch.

This wholesale killing of patents needs a moniker.

I propose “Alicide”.

Alicide follows a simple formula: 1. Abstract idea? 2. Cadaverous patent flesh! You can just about bank on it.

But why should patents on good technology-advancing ideas get turned into moribund animal muscle over such a meaningless  catchphrase? The question begs an answer. Yet we are far from getting one. In spite of (or maybe because of) today’s furious rate of patent bashing.

In the opinions, there is the obligatory hand waving, of course, and nods are made to earlier decisions. Yet those prior pronouncements on the “abstract idea” mantra were just as hard to decipher.

I don’t get it. Why is there so little insightful guidance in the opinions on this “abstract idea” incantation that is the “ready, aim, and fire” of Alicide? Is the answer that killing these patents is a goal too compelling to let the quaint need for a enlightening explanation get in the way? Is setting out a workable definition of “abstract idea” too tedious? Too hard? Too dangerous?

This cart-before-the-horse facet of Alicide reminds me of the gloss on justice offered by the Queen in Through the Looking Glass:

‘No, no!’ said the Queen. ‘Sentence first—verdict afterwards.’

‘Stuff and nonsense!’ said Alice loudly. ‘The idea of having the sentence first!’ … ‘I never heard of such a thing!’

‘—but there’s one great advantage in it, that one’s memory works both ways.’

… ‘What sort of things do YOU remember best?’ Alice ventured to ask.

‘Oh, things that happened the week after next,’ the Queen replied in a careless tone … ‘For instance … there’s the King’s Messenger. He’s in prison now, being punished: and the trial doesn’t even begin till next Wednesday: and of course the crime comes last of all.’

Like jailing the King’s Messenger, writing opinions may be easier when the author’s mind has fixed on the outcome first. Then the task of clearly explaining the result can be treated as no more than an annoying detail. That tactic had been worked out long ago by Justice Stewart in the punch line of the 1964 Jacobellis pornography case: “I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it.”

However amusing his clever comment may have been in the context of a pornography case, we should resist accepting it when the topic is patents. Especially patents that matter to the vitality of early stage ventures. Let’s not forget that these start-ups mill the grist for an important seat at the American economic dinner table.

If no one else will breathe clarity into this mess, the patent office should. It has been presented squarely with a chance to bring sanity to Alicide. And it has taken the first step in its recent “2014 Interim Guidance on Patent Subject Matter Eligibility.” That document is a start, but we need much more. And soon.

To move more decisively, the patent office should host a formal public rule making proceeding that gets down and dirty, specific, and clear on what “abstract idea” means. And ends with written principles that have the legal force of an agency rule. The patent office has the power to proceed this way. And it ought to.

Then we can get on with the work that the patent system was meant to do. In a rational way.

And make Alicide history.

Just my two cents.

Written by thinker

January 31st, 2015 at 3:09 pm