‘Psychological Analysis’ Unpatentable, Says First Principles Decision

First Principles, Inc. [2011] APO 1 (5 January 2011)

Hearing in relation to examiner's rejection of a patent 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 an inventive step

In the first Patent Office decision to be issued in 2011, the Commissioner's Delegate, Deputy Commissioner Phil Spann, considered whether claims relating to a method he characterised as ‘psychological analysis and therapy’ comprised patentable subject matter (i.e. were for a ‘manner of manufacture’ under the Australian law).  He was also 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 was novel and inventive.

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

Of at least as much interest as 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 patent application in question is no. AU2007221889, entitled Rational 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 personal and group improvement. Rational inquiry includes a plurality of questions, methods and observations leading to answers, meanings, ethics, personal essence, purpose and a greater awareness. The questions and observations in the method are provided to the individual in a matrix or a plurality of modules, including practices and inquiries. The matrix or modules, including practices and inquiries are used to assists [sic] the individual in determining a minimally assumptive matrix of consistent human internal existence and determining a minimally assumptive matrix of consistent reality. If through comparison of the minimally assumptive matrices, 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 belief.

The alleged invention is defined in independent claim 1 as follows:

1.        A rational inquiry method for facilitating a person to integrate an 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 an inconsistency selected from the group consisting of: a first 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.

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

23.    A method, comprising the following steps:
          having a person become consciously aware of internalized conceptions within the person, said internalized 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 least one inconsistency selected from the group consisting of an inconsistency between the person's internalized conceptions and the alternative conceptions, an inconsistency within the person's internalized conceptions in light of the alternative conceptions, and a combination thereof.

THE INVENTOR

Keith Raniere runs an organisation called NXIVM, which was formerly known as Executive Success Programs (ESP).  In October 2003, Forbes ran an article entitled ‘Cult of Personality’ about the man they 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's devoted followers say he is one of the smartest and most ethical people alive. They describe him as a soft-spoken, humble genius who can diagnose societal ills with remarkable clarity. They say his teachings as an inspirational executive coach can empower some of the most successful people in the world to attain ever higher levels of status and money. Why, his program can even cure ailments like diabetes and scoliosis.
…
But some people see a darker and more manipulative side to Keith Raniere. Detractors say he runs a cult-like program aimed at breaking down his subjects psychologically, separating them from their families and inducting them into a bizarre world of messianic pretensions, idiosyncratic language and ritualistic practices. "I think it's a cult," says [the Seagram fortune's Edgar] Bronfman [Sr.]. Though he once took a course and endorsed the program, he hasn't talked to his [two] daughters in months and has grown troubled over the long hours and emotional and financial investment they have been devoting to Raniere's group. One daughter, Clare, 24, has lent the program $2 million, at 2.5% interest, the senior Bronfman says (she denies this).
…
Raniere says there's nothing in his operation that makes it a cult, and indeed, many enrollees see Executive Success as a good coaching program and nothing more. Enron's Stephen Cooper puts himself in this category. …
…
His teachings [like his patent specifications – Ed.] are 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 an Ayn Rand novel.

And the article continues in much the same vein.  A more recent piece (7 September 2010) appearing at timesunion.com (of Albany, NY, where a significant NXIVM centre is based) describes the ordeal of 41-year-old Becca Friedman, who was indeed separated from her family, until she was persuaded by information provided by her husband that NXIVM is ‘a cult’.  The following description of a  process known as ‘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 higher ranking NXIVM official queries a subordinate member, sometimes for a charge. The talks are supposed to help the less advanced student deal with a conflict. Friedman had received about 100. Her husband had found articles describing such sessions as manipulative.

Indeed, Rick Ross … said the EMs are similar to auditing done in Scientology. They can be manipulated depending on the questions asked, he claimed.

Here at Patentology, we are strongly opposed to cults, and any form of psychological manipulation in general.  We would happily see this application refused on the grounds that it is ‘generally inconvenient’ or ‘mischievous to the state’, to quote the original terms of the Statute of Monopolies 1623.  Fortunately, the Deputy Commissioner was able to find a more modern basis for refusal!

PATENTABLE SUBJECT MATTER

Citing Grant v Commissioner of Patents [2006] FCAFC 120, the Delegate noted that ‘[a] physical effect in the sense of a concrete effect or phenomenon or manifestation or transformation is 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 patent’ (at [12]).

The applicant argued that ‘the method of the claims produces an “observable effect” because it results in a change in the emotional and, consequently, the physiological state of the subject’ (at [13]).  The Delegate responded:

However this is clearly not the sort of “physical phenomenon or effect” anticipated in Grant or indeed is in any way an 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 responses to questions. It solely concerns human 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 human body. Consequently in my view the subject matter of the claims clearly falls within the fine rather than useful arts in the same way as legal analysis and reasoning was not found to be patentable in Grant.

As a result, the claims were found to be invalid on the basis that they did not define a ‘manner of manufacture’ (i.e. patentable subject matter).

AMENDMENT

The applicant had also sought to amend the claims to specify that the method steps are implemented using a computer.  The Delegate found the amendments not to be allowable.  He 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 rational inquiry method disclosed’ (at [6]).

The Delegate considered that it was therefore ‘fanciful to suggest that there is any real or reasonably clear disclosure for the compiling and comparing steps now proposed to be included in claim 1 or of the storing and presentation steps in claim 20. Therefore I find that the amendments proposed in the second and third statements of proposed amendments are not allowable…’ (at [10])

NOVELTY AND INVENTIVE STEP

Although not necessary, in view of his findings regarding ‘manner of manufacture’, the Delegate briefly considered novelty and inventive step, stating (at [15]) that:

While dressed up in somewhat convoluted terminology, what appears from the description is that the claims are directed to very common processes of counselling and therapy or personal motivation that are described in the documents cited and these would clearly form part of the common general knowledge of those practicing in the relevant art.

COMMENT

The one issue that we have with this decision is the Delegate’s statement that the subject matter of the alleged invention, i.e. ‘psychological analysis and therapy’, falls 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 as ‘useful’ than ‘fine’. 

While we agree with the result in this case, we are not sure that a broader principle consigning ‘question and answer’ techniques to the ‘unpatentable’ basket is appropriate.  Diagnosis and therapy for diseases of the mind is almost 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 such a method of diagnosis or treatment should be excluded from patentability, assuming it meets the other substantive requirements, such as novelty and inventive step.

Tags: Australia, Patentable subject matter