• Steve Davey

Are methods of psychological treatment patentable?

In the Patent Office decision of First Principles, Inc. [2011] APO 1 (5 January 2011), the Hearing Officer Phil Spann refused standard patent application number 2007221889 for a method of psychological analysis and therapy on the grounds that it was not patentable subject matter.

The inventor is Keith Raniere. He ran a cult called NXIUM. He literally branded his female devotees on their pelvic region and used them as sex slaves. He was later imprisoned.

The invention was defined in 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.

The other independent claim 23 states:

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. Quoting Grant v Commissioner of Patents [2006] FCAFC 120, the Hearing Officer said 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 Hearing Officer stated:

"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 [arts] rather than useful arts in the same way as legal analysis and reasoning was not found to be patentable in Grant."

The claims were found to be invalid on the basis that they did not define patentable subject matter.

The applicant tried 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…."

The Hearing Officer also stated at paragraph [15]:

"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."