Is ‘the way we think’ patentable?

Earlier this year, the Australian Patent Office (“APO”) in First Principles, Inc [2011] APO 1 considered the patentability of an invention relating to a method for “rational inquiry”.  The method purports to improve a person’s reasoning by detecting and removing “disintegrations”.  This is achieved by compiling two “matrices” of data for the subject and comparing them to identify inconsistencies.  The patent specification states that disintegrations include such things as “ineffective non-transcendent emotions” and that their removal by use of the claimed method increases the subject’s personal effectiveness. 

The decision raises a fascinating question: is psychology — the science of mind and behaviour — patentable subject-matter?  In Australia, methods of treatment are patentable.  So where does this leave methods that purport to solve certain behavioural or relationship problems? 

The Delegate dealt with the question of patentability by applying the well-known test espoused by the High Court in National Research and Development Corporation v Commissioner of Patents (1959) 102 CLR 252 (“NRDC”).  The NRDC test requires an invention to be “a mode or manner of achieving an end result which is an artificially created state of affairs of utility in the fields of economics endeavour” in order for it to be patentable (CCOM Pty Ltd v Jiejing [1994] FCA 1168). 

The practical application of the NRDC test has been informed by a number of subsequent decisions.  Importantly, the Delegate thought that Grant v Commissioner of Patents [2006] FCAFC 120 (“Grant”) was relevant.  In Grant, the Full Federal Court explained that an “artificially created state of affairs” can be identified by pointing to some “physical effect in the sense of a concrete effect or phenomenon or manifestation or transformation”.

The Delegate held that an observable change in the emotional and physiological state of a subject of the method was “clearly not the sort of” physical effect contemplated in Grant.  The method claimed was nothing more than a process of “psychological analysis and therapy” based on the subject’s response to a limited number of questions.  Moreover, the method was only concerned with “human interactions and behaviours” making it wholly different to a “method of treating a psychological condition with a drug producing a particular physiochemical interaction with the human body”.  As a result, the application was rejected.

That said, it is at least conceivable that a class of behavioural problems can be resolved and cause a transformation-type physical effect in a subject through verbal consultation, analysis and therapy only.  Why couldn’t such an “invention” be patentable?  Perhaps though, as a matter of policy, to grant a monopoly to something as fundamental as the way we behave or think is too unpalatable to be contemplated.  It does give movies like Total Recall scope to become reality…

One final but important note about computer-implemented methods.  The applicant in this case sought to amend its method claims by inserting such phrases as “a computer-implemented rational inquiry method” and “using [a] computer system”.  These proposed amendments were disallowed but the Delegate commented briefly:

[F]ollowing my decision in Invention Pathways Pty Ltd [2010] APO 10 I am not of the view that the peripheral or incidental involvement of a physical device, even if altered to some extent by the operation of the method, is sufficient in itself to bring an otherwise unpatentable method into the realms of patentability.

With no fewer than four APO decisions now citing the Invention Pathways doctrine, it is reasonably clear that methods that merely make use of technical features (eg, a computer system) but do not make those features “central to the purpose or operation” of the method will not render an otherwise unpatentable method patentable.

The full text of the decision is available here.

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