Are the rules of patent-eligibility logically inconsistent?
Joachim Martillo
Software Architect at Min Risk Software and Patent Agent at Epistemography LLC
The interesting article that is entitled Would Monopoly? be patent ineligible under Alice? and that is found on IPwatchdog implicitly poses a critical question.
Can humans understand today's US patent case law?
The Monopoly game board, which was considered patent-eligible, is a simple model of a market in property.
One could formulate the previous statement as follows.
The Monopoly game board is a physical structure that maps bijectively into a simple logical model of a market in property.
In re Lowry tells us that a data structure is patentable.
The Monopoly rules describe a system of investing by multiple market investors and will eventually converge to a winner (game theory says so).
The rules provide limitations on the claimed board game apparatus claimed on the monopoly board. (See Monopoly claim 9.)
The Bilski hedging claims -- unlike the Alice claims, which related to account settlement -- could have been formulated in terms
- of a structure/model/(logical) game board representing the market,
- of an apparatus representing the participation of competing investors in the market, and
- of rules that enable some subset of the investors to profit (i.e., win).
If we think of the Bilski claims in this way, then the problem with the Bilski claims is not abstract ideas but simply indefiniteness, which could be cured both
- by adding a claim to a structure like a logical game board and also
- by rewriting the Bilski hedging method claims into game method claims.
Of course, if there is no way to formulate the Bilski claims in a SCOTUS-acceptable fashion, then all game claims really must be § 101-ineligible.
In other words,
- one can argue from the Supreme Courts Alice logic that hedging and hedging-like methods are never patent-eligible while
- one can argue from the historical allowance of claims involving rules applied to a game apparatus claimed from a game board/structure/model that hedging and hedging-like methods can certainly be formulated in a way that is patent-eligible because the explicit or inherent (possibly logical) game board is a structure that is statutory patent-eligible subject matter.
SCOTUS seems to argue in Alice that adding limitations to a patent-eligible structure (maybe only in a method claim) creates a less general claim that is patent-ineligible as an Abstract Idea.
That train of logic makes no sense whatsoever to me unless a trading or investing claim is patent-eligible if the claim is drafted in the form of a game claim that treats the market game theoretically and in which the trader plays a more or less fair game against the market.
Can anyone tell me where my reasoning is flawed?
Note that medical treatments, which are becoming more complex as medicine becomes more personalized, can also be formulated as a solitaire-like game that the doctor plays on a logical game board that is generated on the basis of rules that the doctor or a computer program generates. The doctor wins the game by restoring the patient to health or at least by improving the patient's health.