NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

IN RE: HOLLY BROWN, KEN NOVAK, KIM 

GOELLNER,

Appellants

______________________ 

2015-1852

______________________ 

Appeal from the United States Patent and Trademark 

Office, Patent Trial and Appeal Board in No. 09/795,210.

______________________ 

Decided: April 22, 2016

______________________ 

MARK D. KLINKO, Fay Sharpe, LLP, Cleveland, OH, 

for appellants. 

THOMAS W. KRAUSE, Office of the Solicitor, United 

States Patent and Trademark Office, Alexandria, VA, for 

appellee Michelle K. Lee. Also represented by BENJAMIN 

T. HICKMAN, COKE STEWART. 

______________________ 

Before PROST, Chief Judge, MOORE, and STOLL, Circuit 

Judges.

PER CURIAM. 

Holly Brown, Ken Novak, and Kim Goellner (collectively, “Brown”) appeal from the Patent Trial and Appeal 
 2 IN RE: BROWN

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 asserted claims cover only abstract ideas coupled with routine 

and conventional hair-cutting steps, we affirm. 

BACKGROUND

The ’210 application claims methods of cutting 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 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 RE: BROWN 3

The specification provides an example of how to implement 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 head to remove weight. J.A. 19. The 

specification teaches that practicing this method “effectively 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 examiner’s § 101 rejections 

in 2011, which the Board affirmed in 2012. Brown then 

petitioned to amend the claims to specify the use of scissors in step (e), resulting in claim 1 as provided above. 

The examiner again rejected the amended claims under 

§ 101, and in 2015, the Board affirmed that the claims are

drawn to patent-ineligible subject matter. Brown appeals. We have jurisdiction under 28 U.S.C. 

§ 1295(a)(4)(A). 

DISCUSSION

We review the Board’s determination of patentineligible subject matter de novo. In re Ferguson, 558 

F.3d 1359, 1363 (Fed. Cir. 2009). To determine whether 

claims are directed to patent-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 directed 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 examine the elements of each claim both individually and as an 
 4 IN RE: BROWN

ordered combination. Id. at 2355. To transform an abstract 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 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.” 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.” Appellants’ 

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 assigning hair patterns to partial zones. 

Brown argues 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. While step (a) provides instructions 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 depicted 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) visually. J.A. 28 at Fig. 2 (excerpted); see also J.A. 16 (“Figure 2 

represents schematic views of the head depicting head 
IN RE: BROWN 5

shape[.]”).

 Step (b) is similarly not confined to physically designating the head into partial zones. The limitations are

drafted so broadly to encompass the mere idea of applying 

different known hair styles to balance one’s head. Identifying 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 

an abstract idea. And the final step, step (e), is to use 

scissors to cut the hair after you determine the appropriate 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 abstract idea into a patenteligible 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 
 6 IN RE: BROWN

(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. 

We have considered Brown’s remaining arguments 

and they are without merit. 

CONCLUSION

For the foregoing reasons, the judgment of the Board 

is affirmed.

AFFIRMED