The Software IP Report

Haircuts Are Not Patent-Eligible, Says Federal Circuit

By Charles Bieneman

Categories: Patent Eligibility, The Software IP Report

Claims in a patent application that were directed to a method of hair-cutting are not patent-eligible under 35 U.S.C. § 101, the Federal Circuit has held.  In re Brown, No. 2015-1852 (Fed. Cir. April 22, 2016) (per curiam).  Although the court went through the motions of applying the two-part Alice/Mayo test, one has to think that any claim whose preamble is a “method of [insert well-known manual task here]” would be subjected to a similar analysis and result.  Nonetheless, manual processes are not per se patent-ineligible, and the court’s application of the Alice/Mayo test in this context is interesting.

The independent claim at issue recites:

A method of cutting hair comprising;
a) defining a head shape as one of balanced, horizontal oblong or vertical oblong by determining the greater distance between a first distance between a fringe point and a low point of the head and a second distance between the low point of the head and the occipital bone;
b) designating the head into at least three partial zones;
c) identifying at least three hair patterns;
d) assigning at least one of said at least three hair patterns to each of the said partial zones to either build weight or remove weight in at least two of said partial zones; and
e) using scissors to cut hair according to said assigned hair pattern in each of the said partial zones.

Turning to the first prong of the the Alice/Mayo test, the court found that “the claims are drawn to the abstract idea of assigning hair designs to balance head shape.”  The court rejected the applicant’s argument that “the claims are not directed to an abstract idea because steps (a), (b), and (e)–defining a head shape, designating the head, and using scissors–require physical manipulation.”  These steps were “drafted so broadly to encompass the mere idea of applying different known hair styles to balance one’s head.”

Moreover, the last step, using scissors, did not transform the abstract idea into patent-eligible subject matter.  This step merely instructed the application of the abstract idea with scissors.  The court held

that step (e), using scissors to cut hair, is insignificant post-solution activity. Steps (a)–(d) teach the stylist how to choose the hair style, step (e) amounts to “apply it.” These claims are not eligible for patentability under Mayo/Alice.