ALICE IS DEAD
THE US SUPREME COURT KILLED HER
BUT MAY HAVE USED THE WRONG WEAPON
SUPREME COURT OF THE UNITED STATES
ALICE CORPORATION PTY. LTD. v. CLS BANK INTERNATIONAL ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT
No. 13–298. Argued March 31, 2014—Decided June 19, 2014

 

1) “It follows from these cases, and Bilski in particular, that the claims at issue are directed to an abstract idea. On their face, they are drawn to the concept of intermediated settlement, i.e., the use of a third party to mitigate settlement risk. Like the risk hedging in Bilski, the concept of intermediated settlement is “ ‘a fundamental economic practice long prevalent in our system of commerce,’ ” ibid., and the use of a third-party intermediary (or “clearing house”) is a building block of the modern economy. Thus, intermediated settle¬ment, like hedging, is an “abstract idea” beyond §101’s scope.”
2) “(ii) Here, the representative method claim does no more than simply instruct the practitioner to implement the abstract idea of in¬termediated settlement on a generic computer.”

FROM ALLAN’S PERSPECTIVE:

Given statements 1 and 2 above from the Supreme Court decision ALICE appears to be an open and shut case of obviousness:
1) intermediate third party is well known;
2) applying a computer to a task which is understood by a PHOSITA as amenable to computer execution is well known, and ALICE’s intermediation is such a task;
3) ergo: ALICE’s method claim is obvious
BUT
The Supreme Court seems to have difficulty separating non-patentability under US 101 from obviousness and appears to be conflating the two.

Patentability of ALICE’s method claims may, and should?, have been battled out in the theater of whether or not it is obvious to a PHOSITA that the intermediary task in ALICE is programmable for execution by a computer – which I believe it assuredly is.

The Supreme Court (as well as the rest of us) seems to be having a tough time deciding which building blocks in the LEGO set of our universe belong to all of us to play with – free of charge.
It appears that in ALICE the Supreme Court has decided that a “free building block” (FBB), alias “fundamental building block”, alias “abstract idea”, is something that is:
“long prevalent” and ubiquitously appealed to, or perhaps “necessary for”, carrying out a human activity.
I suggest that the Supreme Courts refuge is not satisfactory for the following reason:
If the intermediary is an abstract idea, it is not dependent on whether it is “long prevalent” or has become “a building block of the modern economy”. The transistor is “long prevalent” and a “building block of the modern” technology – has the transistor become an abstract idea for the purposes of patentability? And would the Supreme Court accede to rejecting a claim because the transistor is not patentable subject matter?
ALICE should have been done in with the weapon of obviousness – perhaps with some comment on what ALICE may shed on the difficult subject matter of the abstract idea to which we are all supposed to be given free access.