Haircut Inventors get Trimmed in Court

The Court of Appeals for the Federal Circuit (CAFC), the appeals court for all patent cases, recently ruled that a method for cutting hair is not eligible for patent protection.

Holly Brown, Ken Novak, and Kim Goellner applied for a patent for producing “consistent and reproducible hair styling designs” while “balancing head shape overall.” The patent office rejected the application; the inventors appealed, and the Federal Circuit upheld the rejection.

This represents a shift in the patent system, as in the past patents HAVE been granted for methods of cutting hair. A patent was even granted for the comb-over – US Patent 4022227, “Method of concealing partial baldness.” Fortunately for Donald Trump, that patent has expired.

There are four criteria an invention must meet to be eligible for a patent:

1. It must be patentable subject matter
2. It must be useful
3. It must be novel – no one’s done it before
4. It must be “non-obvious” to someone skilled in the field

The debate in this case, In Re: Holly Brown, Ken Novak, Kim Goellner centers on the first issue, patent-eligible subject matter.

Patent-Eligible Subject Matter

According to section 101 of the US patent laws, the following are eligible for patents:

1. Process
2. Machine
3. Manufacture
4. Composition of matter

There are also a few things that are explicitly NOT eligible for patents, among them laws of nature and abstract ideas.

Where the Brown patent application ran into trouble is on the question of whether their patent application is an abstract idea or not.

The Mayo and Alice Tests

The Supreme Court addressed whether something is an abstract idea in a couple of important court cases, Mayo Collaborative Services v. Prometheus Laboratories and Alice Corp. Party v. CLS Bank International.

In those cases, the court came up with a “two-step test.” Part one is whether the claims are directed to a patent-ineligible concept.” Part two is to “examine the elements of the claim to determine whether it contains an ‘inventive concept’ sufficient to ‘transform’ the claimed abstract idea into a patent-eligible application.”

The Alice case centered on software that was used in a financial hedging operation. In that case the court ruled that taking an abstract hedging concept and saying “do it on a computer” was NOT enough to make it eligible for a patent. This ruling is estimated to have invalidated tens of thousands of software patents, and cast doubt on many more.

The Brown Patent Application

The In Re: Holly Brown ruling seems to do for haircuts what Alice did for software patents.

The claim the court considered is the following:
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.

In applying the Alice test, the court ruled that the claim is based on an abstract idea: “assigning hair designs to balance head shape.” The court found that the patent didn’t include anything about the specific technique to be used to measure the head, etc. The court also found that adding the use of scissors at the end was not enough to transform the abstract idea into patent eligible subject matter, just as saying “on a computer” doesn’t transform an abstract software idea into a patentable subject matter.

Presumably many existing haircutting patents would also have the same problem if they were challenged either in court or in an inter partes review at the patent office.