Patentable Subject Matter Issue Comes to Wild World of Haircutting


Is the U.S. Supreme Court stifling innovation in haircutting? Or has it kept the world safe for aspiring stylists with a pair of scissors and a dream?

The high court’s rulings on what constitutes patentable subject matter have been controversial, to say the least. Critics say the two-part Alice/Mayo analysis has stifled software and biotechnology innovation by resulting in the invalidation of many patents in those fields.

Last week, innovation in the not-so-high-tech world of haircutting was also on the cutting board.

Under Alice/Mayo, the first step of the analysis determines if a patent claim recites an ineligible concept, such as a natural law, natural phenomena or an abstract idea. If it does, the second step determines if a claim has enough additional elements to go beyond that basic concept.

Applying that test, the U.S. Court of Appeals for the Federal Circuit ruled April 22 that a hair-cutting invention that assigns hair designs to balance head shape can’t be patented because it covers an abstract idea.

In re: Brown relates to U.S. Patent Application No. 09/795,210 claiming a hair-cutting method that involves:

  • Defining head shape by determining the distance between various points on the head;
  • Dividing the head into at least three zones and assigning “hair patterns” to each zone to help increase or decrease the “weight” of that zone; and
  • Using scissors to cut the hair according to those patterns.

The court found the claims so broad that they cover the idea of picking a hairstyle to balance head shape, and that the method can be performed purely in one’s head. Applying the second Alice/Mayo step, it rejected the argument that the step in the invention directing a user to use scissors to cut hair added the “inventive concept” needed to make an abstract idea patentable.

In its ruling, the court agreed with the Patent and Trademark Office, which rejected the application on the grounds that the claims were not patent-eligible subject matter under 35 U.S.C. § 101.

Though this “invention” failed to pass muster, there have been patented inventions that do advance haircutting technology. One of the most noteworthy (or notorious, depending on your perspective) is the Flowbee, the hair-cutting tool that attaches to a vacuum cleaner.

Alas, the Flowbee patent (U.S. Patent No. 4,679,322) has expired. But it serves as a reminder that innovation in haircutting is possible. As for software and biotech, debate will, no doubt, rage on.