Legal publications, law firm marketers, and hyper-competitive lawyers can’t seem to get enough of lawyer rankings. (The American Lawyer and its affiliates have certainly contributed to the genre.) Best-lawyer lists have been around for a long while, but on Tuesday Super Lawyers, a division of Thomson Reuters, announced that it won a brand new patent for its own "comprehensive" selection process, entitled "System and method for identifying excellence within a profession."
Far from revealing some great alchemy behind its rankings, the Super Lawyers patent describes a seemingly obvious process for compiling these lists–namely, creating a candidate pool, evaluating the candidates based in part on peer reviews, and selecting finalists. In case you think we’re oversimplifying the patent, head over to Patently-O to see for yourself how Super Lawyers diagrammed its process.
The newly-patented method can only be performed using a "processor" and a "data storage device"–in other words, a computer. "Without these limitations, the method could be performed in a room of professionals with nothing other than pencil and paper," wrote Patently-O’s Dennis Crouch, a law professor at the University of Missouri.
So-called "business method" patents like this one are nothing new, of course. Some critics, like the Electronic Frontier Foundation, have long complained that these patents shouldn’t be granted in the first place. Under Section 101 of the Patent Act, "abstract ideas" aren’t eligible for patent protection. According to EFF and its allies, many method patents and software patents simply take an abstract, age-old idea and add a computer.
As we’ve reported, the U.S. Court of Appeals for the Federal Circuit has revisited Section 101 in a series of rulings over the last two years without adding much clarity to the statute’s requirements. In one case, the court held that "simply adding a computer aided limitation to a claim covering an abstract concept, without more, is insufficient to render the claim patent eligible." But in another 2-1 decision, CLS Bank v. Alice Corporation, the court refused to throw out a patent that did precisely that, at least according to many observers. "Setting any need for computer implementation aside, there is nothing in the method steps themselves than brings the invention within patentable subject matter," Federal Circuit judge Sharon Prost wrote in a fiery dissent in the CLS Bank case.
Clarity–and reform–could be on the way. Perhaps receptive to Prost’s remarks, the Federal Circuit agreed to rehear CLS Bank en banc in February. Here’s how the court phrased the questions on appeal: What test should the court adopt to determine whether a computer-implemented invention is a patent-eligible abstract idea? And when, if ever, does the presence of a computer in a claim lend patent eligibility to an otherwise patent-ineligible idea?
The Federal Circuit is expected to issue its opinion in the coming months, and its findings may help decide whether patents like Super Lawyers’s pass muster. As for us, we’ll keep our system for choosing Litigator of the Week shrouded in mystery. (Here’s a hint: it helps if you win.)