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In re Brown

Representative Claim

1. 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.

Posture:

Appeal from the United States Patent and Trademark Office, Patent Trial and Appeal Board in No. 09/795,210.

Abstract Idea: Yes

The Federal Circuit agreed with the Board’s Step One determination, stating:

“[T]he claims are drawn to the abstract idea of assigning hair designs to balance head shape. We agree with the Board’s determination that the central purpose of the claimed method is the process before cutting, and that the hair-cutting step constitutes ‘insignificant post-solution activity.’”

Something More: No

The Federal Circuit also agreed with the Board’s Step Two determination, stating:

“Much of Brown’s briefing focuses on the use of scissors in step (e) to transform the abstract idea into a patent-eligible concept. They argue the hair cutting step in step (e) is a meaningful and necessary limitation, and that the scissors used in that step render the claims patent eligible under the machine-or-transformation test. While it is true that a hair cut 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 envisioned as imparting patent eligibility. See Alice, 134 S. Ct. at 2358 (‘Stating an abstract idea while adding the words ‘apply it’ is not enough for patent eligibility.’) (quoting Mayo, 132 S. Ct. at 1294 (internal quotation marks omitted)). We hold 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.”