On June 19 of this year, the Supreme Court passed down what some consider to be a landmark decision, Alice Corp. Pty. Ltd. v. CLS Bank Int’l. The short of it is that an abstract idea alone cannot be patented. This is not a new rule by any means. But figuring out what constitutes an abstract idea and what pushes an idea over the patentability edge has always been a struggle. Though this recent decision did not provide much extra guidance, it did solidify what appeared to be a waning rule: you can’t, like, OWN a basic concept maaaaan.
One of the first, and perhaps the most famous applications of this rule was in 1854 when the Supreme Court told Samuel Morse that he could not hold a patent on the use of electromagnetism to transmit messages. Since then, the rule has ebbed and flowed at all judiciary levels, several times appearing to nearly fizzle out or change to allow patents on basic concepts that can be used to make money. But the rule has come back stronger than before. In 1972, the Supreme Court used the rule to invalidate a patent on a mathematical algorithm for converting numbers in binary-coded decimal form into pure binary form, stating that “[a]n idea itself is not patentable.” Again in 2010, the Supreme Court struck down a patent on hedging risk in commodities transactions. And now, in Alice Corp., the same court invalidated a patentee’s exclusive rights on using a computer-mediated transaction auditor to hedge default risk.
This makes sense. After all, the point of patent law, according to the U.S. Constitution, is “to promote the Progress of Science and useful Arts.” Arguably, patents bestowing rights to exclude others from using basic ideas would harm, not promote that goal.
But nowhere is it written that unpatentable abstract ideas have no value. The law is simply that you cannot get exclusive monopoly rights on such ideas. We at ideaphore challenge the concept that an unpatented, or even a yet-untested, idea has no value at all. It is only because there has been no outlet for them – no way to turn them into money – no way to be recognized for them – and no way to protect them in transit to a company that could use them – that people have held back their best ideas. That is, until now.
What can we do with an idea if it is too abstract or if we are not interested in spending the money to find out whether it is patentable? We at ideaphore are proposing a new system: pitch enough of the idea to get interest without giving everything away and then sell the rest, together with all of the thought and all of the work you have already put into it, at a fair market price. That is the basic premise of ideaphore.
Inspiration often strikes randomly and without regard for patentability. And the thought, work product, research, writing, and prototyping that follows inspiration is often very valuable. When it is valuable, the inspired would often rather sit on the product of their inspiration than to give it away for nothing, even to someone who can use it.
Just because an idea is basic or small does not mean that a particular employee at a particular company has considered whether it would bring value to that company. Sometimes the best innovations come from answers to questions you never thought to ask.
Long live ideas.
ideaphore 