Alice Insanity (Part Two): How the Dunning-Kruger Effect Influences the Outcome of Federal Circuit Decisions

Source: Wikimedia

The Dunning-Kruger effect is often defined as a type of cognitive bias whereby people are prone to vastly misjudge their competence. For example, smart and capable people tend to evaluate their skills and competence downward. That is, they tend to not just understand, but deeply internalize the idea that there’s a lot in life that they don’t understand. Circa 500BC, Confucius coined this wisdom stating, “Real knowledge is to know the extent of one’s ignorance.”

Then there’s the flip side, where low ability and/or low knowledge people overestimate their own capabilities while simultaneously being unable to recognize their own incompetence. One-hundred and thirty years (give or take) before David Dunning and Justin Kruger conducted their studies on the issue, Charles Darwin described this effect, stating, “ignorance more frequently begets confidence than does knowledge.”

Highly educated, successful, and presumably very smart people are especially subject to the Dunning-Kruger effect. Take, for example, Congressional Representative Hank Johnson who, during a House Armed Services Committee hearing, expressed his fear is that “the whole island [of Guam] will become so overly populated that it will tip over and capsize.” While comical, Representative Johnson is an accomplished and highly educated individual with a B.A. degree, a J.D. degree, more than 25 years of a successful legal practice, and over 14 years serving in the House. What Representative Johnson lacks is technical knowledge. Thus, Representative Johnson represents the idea that even impressively smart and accomplished people are subject to the Dunning-Kruger effect, as intelligence isn’t the same thing as hard-earned knowledge and skills. Expertise in one field of endeavor is not competence in another.

Alice-Mayo is the Dunning-Kruger Effect Run Amok in the Courts

The Federal Circuit and lower courts are not entirely to blame for the tangled web of patent eligibility. The root cause is the Supreme Court, which cannot help itself when tempted to rewrite 35 U.S.C. § 101 from the bench, starting with the inept Benson decision. Thereafter, Justice Stevens led his decades-long anti-patent crusade. No one knows what provoked Justice Stevens’ anti-patent bias – only that this bias was very strong and at least partially infectious among his esteemed technically-challenged colleagues.

However, Justice Thomas never gave the lower courts license to ignore the holding of Alice Corp. – particularly the part where Justice Thomas cited that the business method at issue had been disclosed as far back as 1896. As with the holding of Bilski, the holding of Alice Corp. is evidence based. Unfortunately, rather than reading the entirety of Alice Corp. (or Bilski or Mayo), the Federal Circuit and the U.S. Patent and Trademark Office (USPTO) decided that all business methods were suspect, that only the holy inventive concept could save such business methods from The Darkened Lands of the Abstract, and that only the black-robed priesthood of Madison Place could delve the secrets of invention.

The underlying problem is that, in the absence of evidence, judges tend to embrace Dunning-Kruger. Many judges do have technical degrees, but does a BSEE degree (sans industry experience) enable a judge to know whether a particular claim in adaptive signal processing is non-obvious without an evidentiary basis? Of course not. No judge presently on the Federal Circuit would make such a claim.

Why then would most of these same judges believe they have the knowledge to just know whether a claim is “abstract” and lacks an “inventive concept,” when these same judges not only lack a basic understanding and background of a specific underlying technology, but have outright refused to define the terms “abstract” and “inventive concept” as they apply to the specific technology at issue? Why then would most of these same judges believe they know the bounds of “invention” when no judge has ever defined the term in the last 171 years of patent jurisprudence? The answer is Dunning-Kruger. Dunning-Kruger empowers judges to just know things so long as there’s no evidence to contradict them. Most Federal Circuit judges don’t qualify as technical neophytes, yet they knowingly opine on the elusive inventive concept as it applies to the technology sub judice. David Dunning remarked on this very phenomena, stating, “the incompetent are often blessed with an inappropriate confidence, buoyed by something that feels to them like knowledge.”

When in Doubt, Apply Rule 36

“Even fools are thought wise if they keep silent, and discerning if they hold their tongues” – Proverbs 17:28. This Biblical verse summarizes every Rule 36 judgment on Alice-Mayo. It is how the Federal Circuit maintains the illusion that they know of what they speak. Other times, the Federal Circuit distorts the factual record, or conveniently forgets to address the issues before them. It’s how and why no patent applicant – without exception – has ever survived an Alice-Mayo rejection issued from the USPTO. Does anyone who works two blocks away from Madison Place or any federal courthouse believe this is possible without serial violations of due process of law?