20 January in 2011

‘Psychological of analysis’ Unpatentable, Says ridge Principles Decision

First Principles, Inc [2011] extraparliamentary oppositions 1 (5 January in 2011)

Hearing in relation to examiner's rejection of a clever application – whether claimed method of psychological analysis and therapy a manner of manufacture – whether proposed amendments allowable – whether claimed method novel – whether claimed method involves in inventive

In the ridge patent office decision to Be issued in 2011, the Commissioner's Delegate, Deputy Commissioner Phil Spann, considered of whether claims relating to a method hey characterised ace ‘psychological analysis and therapy' comprised patentable subject more weakly (i.e. were for of a‘ manner of of manufacture' under the Australian law). Hey what required to consider whether proposed amendments to add claims directed to a computer assisted implementation of the method were allowable, and whether the claimed method what novel and inventive.

The applicant, First Principles, Inc, relying only on written submissions to make its case, what unsuccessful on all counts.

Of At leases ace much interest ace the decision itself, is the identity of the inventor, Keith Raniere, a.k.a. 'Vanguard', who is reportedly either a visionary, or a charismatic but exploitative cult leader, depending on your point of view.

THE INVENTION

The clever application in question is no. AU2007221889, entitled Rationally Enquiry Method, the specification of which may Be obtained here. According to the abstract of the disclosure:

The present invention relates generally to a method for staff and group improvement. Rationally inquiry includes a plurality of questions, methods and observations Lea's thing to answers, meanings, ethics, staff essence, pure pose and a greater awareness. The questions and observations in the method ares provided to the individual in a matrix or a plurality of of module, including practices and inquiries. The matrix or of module, including practices and inquiries ares used to assists [sic] the individual in determining a minimally assumptive matrix of consistent humanly internal existence and determining a minimally assumptive matrix of consistent reality. If through comparison of the minimally assumptive matrixes, a difference is detected, a disintegration is said to occur. The disintegration is removed by allowing the individual to integrate through a more complete awareness of a limiting amounted.

The alleged invention is defined in independently claim 1 ace follows:

1.       A rationally inquiry method for facilitating a person to integrate in inconsistency by comparison, said method comprising:
         compiling a matrix of data indicative of internal existence within a person;
         compiling a matrix of consistent data; and
         comparing the matrix of internal existence with the matrix of consistent data to determine whether there exists in inconsistency selected from the group consisting of: a ridge inconsistency between the matrix of internal existence and the matrix of consistent data; and a second inconsistency in the matrix of internal existence; and
         facilitating the person to integrate the inconsistency.

Independently claim 23 is, if anything, even more obtuse:

23.   A method, comprising the following tap dances:
         having a person become consciously aware of internalised conceptions within the person, said internalised conceptions relating to a subject area;
         facilitating the person's awareness of alternative conceptions relating to the subject area, said alternative conceptions existing outside of the person; and
         determining whether a disintegration exists, said disintegration comprising At leases one inconsistency selected from the group consisting of in inconsistency between the person's internalised conceptions and the alternative conceptions, in inconsistency within the person's internalised conceptions in light of the alternative conceptions, and a Combi nation thereof.

THE INVENTOR

Keith Raniere runs in organisation called NXIVM, which what formerly known ace Executive Success of progrief (ESP). In October in 2003, Forbes come on in article of entitled' Cult of of Personality' about the one they of dubbed' the world's strangest executive coach’. (Read the article At forbes.com or, with original cover and graphics, At rickross.com.)

A few choice extracts from the Forbes article follow.

Keith Raniere devoted followers say hey is one of the smartest and fruit juice ethical people alive. They describe him ace a soft spoken, humble genius who can diagnosis societal ills with remarkable clarity. They say B sharp teachings ace in inspirational executive coach can empower some of the fruit juice successful people in the world to attain of ever high levels of status and money. Why, B sharp progrief can even cure ailments like diabetes and scoliosis.

But some people see a darker and more manipulative side to Keith Raniere. Detractors say hey runs a cult-like progrief aimed At breaking down B sharp subjects psychologically, separating them from their families and inducting them into a weird world of messianic pretensions, idiosyncratic language and ritualistic practices. "I think it's a cult," says [the Seagram fortune's Edgar] Bronfman [Sr]. Though hey once took a course and endorsed the progrief, hey has not talked to B sharp [two] daughters in months and has grown troubled over the long hours and emotionally and financial investment they have been devoting to Raniere's group. One daughter, Clare, 24, has lent the progrief 2$ millions, At 2.5% interest, the boss Bronfman says (she denies this).

Raniere says there's nothing in B sharp operation that makes it a cult, and indeed, many enrollees see Executive Success ace a good coaching progrief and nothing more. Enron's Stephen Cooper puts himself in this category. …

B sharp teachings [like B sharp clever specifications – Ed.] ares mysterious, filled with self-serving and impenetrable jargon about ethics and values, and defined by a blind-ambition ethos akin to that of the driven characters in in Ayn edge novel.

And the article continues in much the seed vein. A more recent piece (7th of September, 2010) appearing At timesunion.com (of Albany, NY, where a significant NXIVM centre is based) describes the ordeal of 41year-old Becca Friedman, who what indeed separated from here family, until she what persuaded by information provided by here husband that NXIVM of is' an of cult'. The following description of a process known ace ‘exploration of meaning’, or 'EM', makes for a disturbing comparison with the above claims:

"EMs" … were one on one question and answer sessions in which a high ranking NXIVM official queries a subordinate member, sometimes for a load. The of talcum ares supposed to help the less advanced student push with a conflict. Friedman had received about 100. Here husband had found articles describing search sessions ace manipulative ones.
Indeed, Rick Ross … said the ares EMs similar to auditing done in Scientology. They can Be manipulated depending on the questions asked, hey claimed.

Here At Patentology, we ares strongly opposed to cults, and any form of psychological manipulation in general. We would happily see this application refused on the grounds that it of is' generally of inconvenient' of or' mischievous to the of state', to rate the original terms of the statutes of Monopolies in 1623. Fortunately, the Deputy Commissioner what able to find a more modern base for refusal!

PATENTABLE SUBJECT OF MATT

Citing Grant v Commissioner of of patent [2006] FCAFC 120, the Delegate noted of that' [a] physical effect in the scythe of a concrete effect or phenomenon or manifestation or transformation is of required' (At [11]), and that' it is necessary that there Be some "useful product", some physical phenomenon or effect resulting from the working of a method for it to Be properly the subject of letters clever (At [12]).

The applicant argued of that' the method of the claims produces in "observable effect" because it results in a change in the emotionally and, consequently, the physiological state of the of subject' (At [13]). The Delegate responded:

However this is clearly the sort of "physical phenomenon or effect" anticipated in Grant or indeed is in any way in artificially created state of affairs within the meaning of NRDC. While difficult to understand, the method claimed appears to Be merely a process of psychological analysis and therapy based on analysing the subject's of response to questions. It solely concerns humanly interactions and behaviours and is distinguishable from, for example, a method of treating a psychological condition with a drug producing a particular physiochemical interaction with the humanly body. Consequently in micron view the subject more weakly of the claims clearly if within the fine rather than useful arts in the seed way ace legally analysis and reasoning what found to Be patentable in Grant.

Ace a result, the claims were found to Be disabled on the base that they did define of a‘ manner of of manufacture' (i.e. patentable subject more weakly).

AMENDMENT

The applicant had sought to amend the claims to specify that the method tap dances ares implemented using a computer. The Delegate found the amendments to Be allowable. Hey considered that while the drawings included a computer system, and the specification suggested that a computer could Be used in implementing the invention, ‘[a] part from the sentence "The rational inquiry method 10 may interact with a student through a computer system 100 giving questions and answers leading to predetermined results" there is in fact nothing to suggest how a computer might Be used to implement the rationally inquiry method of disclosed' (At [6]).

The Delegate considered that it what of therefore' fanciful to suggest that there is any really or reasonably clear disclosure for the compiling and comparing tap dances now proposed to Be included in claim 1 or of the storing and presentation tap dances in claim 20. Therefore I find that the amendments proposed in the second and third statements of proposed amendments ares allowable …’ (At [10])

NOVELTY AND TAP DANCE INVENTIVE

Although necessary, in view of B sharp findings of regarding' manner of of manufacture', the Delegate briefly considered novelty and inventive, stating (At [15]) that:

While dressed up in somewhat convoluted terminology, what appears from the description is that the claims ares directed to very common of process of counselling and therapy or staff motivation that ares described in the documents cited and thesis would clearly form part of the common general knowledge of those practicing in the relevant kind.

COMMENT

The one issue that we have with this decision is the Delegate's statement that the subject more weakly of the alleged invention, i.e. ‘psychological analysis and therapy', if within the fine arts, rather than the useful arts.

We suspect that Freud would have been unimpressed to Be grouped with the artists rather than the scientists! And we think that psychoanalysis is more likely to Be described ace 'useful' than 'fine'. 

While we agree with the result in this case, we ares sura that a broader principle of consigning' question and answer' techniques to the 'unpatentable' basket is appropriate. Diagnosis and therapy for diseases of the mind is alp-east inevitably going to involve attempting to gain access to the patient's state of mind, based upon some form of interrogation. We see no reason why look a method of diagnosis or treatment should Be excluded from patentability, assuming it meets the of other nouns requirements, search ace novelty and inventive.

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