N OTE : This disposition is nonprecedential.


# United States **Court of Appeals**  **for the Federal Circuit**

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IN RE: HOLLY BROWN, KEN NOVAK, KIM GOELLNER,

Appellants

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2015

- 1852

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

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Decided: April 22, 2016

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M ARK D. K LINKO
, Fay Sharpe, LLP, Cleveland, OH, for appellants.

T HOMAS W. K RAUSE
, Office of the Solicitor, United States Patent and Trademark Office, Alexandria, VA, for appellee Michelle K. Lee . Also represented by B ENJAMIN T. H ICKMAN
, C OKE S TEWART

.

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Before P ROST
, Chief Judge, M OORE
, and S TOLL
, Circuit Judges.

P ER C URIAM

. Holly Brown, Ken Novak, and Kim Goellner ( co l le ctively, “Brown”) appeal from the Patent Trial and AppealIN RE : BROWN 2

Board’s (“Board”) decision holding claims 1– 5, 7– 9, 17, 18, and 20

– 22 of U.S. Patent Application No. 09/795,210 unpatentable under 35 U.S.C. § 101. Because the asser ted claims cover only abstract ideas coupled with routine and conventional hair

- cutting steps, we affirm

. B ACKGROUND
The ’210 application claims methods of cut ting hair

. The specification indicates that an object of the invention is to produce “consistent and reproducible hair styling designs ” while “balancing head shape overall.” J.A. 14

, 19

. Claim 1 is representative of the claimed subject matter, which recites:

1. A method of cutting hair comprising;

a) defining a head shape as one of ba lanced, horizontal oblong or vertical oblong by determining the greater distance b etween 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 p a rtial 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 RE : BROWN 3

The specification provides an example of how to i mplement the claimed steps : if a client has a vertical oblong head shape, a hairstyle should be identified and assigned to partial zones on the sides of the head to build weight, and a second hairstyle should be identified and assigned

to the top of the hea d to remove weight

. J.A. 19

. The specification teaches that practicing this method “effe ctively allocates hair weight in opposition to head shape.” J.A. 15

. It discloses that the hair patterns used to build or remove weight are known in the art. J.A. 13, 15

. Brown first appealed the exam iner’s § 101 rejections
in 2011 , which the Board affirmed in 2012

. Brown then petitioned to amend the claims to spec ify the use of sci ssors in step (e), resulting in claim 1 as provided above

. The examin er again rejected the amended claims under § 101 , and in 2015, t he Board affirmed that the claims are drawn to patent

- ineligible subject matter

. Brown a ppeals. We have jurisdiction under 28 U.S.C. § 1295(a)(4)(A).

D ISCUSSION
We review the Board’s determination of patent

ineligible subject matter de novo. In re Ferguson , 558 F.3d 1359, 1363 (Fed. Cir. 2009). To determine whether claims are directed to pat ent

- ineligible abstract ideas , we apply the two

- step test introduced in Mayo Collaborative Services v. Prometheus Laboratories, Inc. , 132 S. Ct. 1289,
1296

– 98 (2012), and further explained in Alice Corp. Party v. CLS Bank International , 134 S. Ct. 2347, 2355 (2014). First, we “determine whether the claims at issue are directe d to a patent

- ineligible concept.” Alice , 134 S. Ct. at 2355. If so , we then “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 .” Id. at 2357. We exa mine the elements of each claim both individually and as anIN RE : BROWN 4

ordered combination. Id. at 2355. To transform an a bstract idea into a patent

- eligible concept, the claims must recite “ more than simply stating the abstract idea while adding the words ‘apply it.’” Id. at 2357 (quoting Mayo

, 132 S. Ct. at 1294 (internal alterations omitted ) ).

At Mayo/Alice step one, the claims are drawn to the abstract idea of assigning hair designs to ba lance 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.” Ex parte Brown

, No. 2014

- 004390, at 4 (P.T.A.B. Apr. 8, 2015). Brown themselves state the object of the invention, providing a “consistent and repeatable hair cut,” is “achieved through the recited steps of defining a head shape, designating zones, and assigning patterns to zones.” Appel lants’
Br. 15

– 16. They do not dispute that the hair cutting step “employs a well

- known concept,” id. at 17, or that the hair patterns applied are “industry recognized

, ” id. at 7. They further suggest the inventive portion of the claims stem from steps (a ) and (d), defining a head shape and assig ning hair patterns to partial zones.

Brown argues th e claims are not directed to an a bstract idea because steps (a), (b), and (e)

— defining a head shape, designating the head, and using scissors

— require physical manipulation. While step (a) provides instr u ctions on how to define head shape, it does not recite instructions for one to physically measure a head. Nowhere in the specification does it indicate or suggest this step must be performed physically, or what instrument could be used. The head shapes depict ed in Figure 2 of
the ’210 application

, of which “horizontal oblong” and “vertical oblong” head shapes are respectively shown below, instead suggest one would perform step (a) visua lly. J.A. 28 at Fig. 2 ( excerpted); see also J.A. 16 (“Figure 2 represents schematic views of the head depicting headIN RE : BROWN 5

shape[.]”).

Step (b) is similarly not confined to physically designa ting the head into partial zones

. T he limitation s are drafted so broadly to encompass the mere idea of applying different known hair styles to balance one’s head

. Ident ifying head shape and applying hair designs accordingly is an abstract idea capable, as the Board notes, of being performed entirely in one’s mind. These steps constitute

a n abstract idea. And the final step, step (e), is to use scissors to cut the hair after you determine the appropr iate hair style . Step (e) does not transform this abstract idea into patent

- eligible subject matter.

Much of Brown’s briefing focuses on the use of scissors in step (e) to transform the abstrac t 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 d iscussed above with scissors

. Such a limitation is no t the type of add itional feature Alice envision ed as impart ing patent elig ibility. See Alice

, 134 S. Ct. at 2358 (“Stating an abstract idea wh ile 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 stepIN RE : BROWN 6

(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 claim s are not eligible for patentability under Mayo/Alice

. We have considered Brown’s remaining arguments and they are without merit.

C ONCLUSION
For the foregoing reasons, the judgment of the Board is affirmed.

AFFIRMED