The Court of Appeals for the Federal Circuit expanded the scope of what is considered to be patent ineligible subject matter, denying patent status to a class of process-methods, relating to abstract ideas for a unique hair cutting patent and, in another appeal, for a unique card game, and declaring that these efforts to secure patent protection are not within the scope of Section 101 of the Patent Act (35 U.S.C. sec. 101) and the Supreme Court case of Alice Corp. v. CLS Bank International, 134 S. Ct. 2347, 2355 (2014). This commentary discusses the hair cut process. In re Brown, Case No. 2015-1852 (Fed. Cir. April 22, 2016) (Available Here).
Holly Brown sought to obtain a patent on a method for cutting hair which, in summary, (a) defined a head shape; (b) designated the head into at least three partial zones; (c) identified at least three hair patterns; (d) assigned a hair pattern to each zone; and (e) used scissors to cut the hair in accordance with the assigned hair pattern.
The patent examiner initially rejected Brown’s method of cutting hair under 35 U.S.C. Section 101 asserting that the subject matter was ineligible patent subject matter. The Federal Circuit applied the two-step Mayo/Alice analysis to the hair cutting process patent. In step one, the Court found that the claims are drawn to an abstract idea of assigning hair designs to balance the shape of a head. Further the Federal Circuit agreed with the Patent Trial and Appeal Board’s determination that the central purpose of the claim method was a haircutting process which was “an insignificant post-solution activity” and therefore was not considered in the Mayo/Alice analysis.
The Federal Circuit indicated that Brown did not dispute that haircutting was a well-known concept widely recognized in the industry. However, Brown argued that the inventive portion of the claims arose from steps a and d which define a head shape and assign hair patterns.
As for step b, “The limitations are drafted so broadly to encompass the mere idea of applying different known hairstyles to balance one’s head. Identifying head shape and applying your designs accordingly is an abstract idea capable, as the Board notes, of being performed entirely in one’s mind.”
Further the Federal Circuit stated: “While it is true that a haircut would not result without practicing the final step of cutting hair, step e merely instructs one to apply the abstract idea discussed above with scissors. Such a limitation is not the type of additional feature Alice envisions in imparting patent eligibility. Alice Corp. (“stating an abstract idea while adding the words ‘apply it’ is not enough for patent eligibility”).
The Federal Circuit upheld the Board’s decision to declare that the unique haircutting method defines patent ineligible subject matter.