One of the struggles of the Subject Matter Eligibility test is understanding the definition of the legal term “abstract idea.” The Supreme Court has used the term “abstract” in many other areas of law – perhaps most pointedly in the area of standing and the requirement of a concrete, non-abstract harm.
In the 2016 internet law case of Spokeo v. Robins, the Supreme Court explained:
When we have used the adjective “concrete,” we have meant to convey the usual meaning of the term—“real,” and not “abstract.” . . . “Concrete” is not, however, necessarily synonymous with “tangible.” Although tangible injuries are perhaps easier to recognize, we have confirmed in many of our previous cases that intangible injuries can nevertheless be concrete.
The use of “abstract” here is strikingly similar to that used by the Supreme Court in its eligibility analysis. A concrete harm (or invention) must be sufficiently real, but need not actually be a tangible harm. [Decision]
Spokeo is a ‘people search engine’ often used by potential employers. They substantially screwed up Robins’ information and he sued — alleging willful failure to comply with the Fair Credit Reporting Act’s requirements. The issue before the Supreme Court was whether the plaintiff could establish any concrete harm based upon the online errors. After the Supreme Court clarified the standard, on remand the Ninth Circuit held that the reputational harm associated with false information was sufficiently real, concrete, and not abstract – even if not tangible.
Although Spokeo offers a parallel abstract-ness analysis, it doses not actually get us closer to a straightforward definition of the term. What it may do, though is open the analysis to a wider set of precedent.