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More and more it seems that the limitations of what can be patented are defined only by the USPTO's ability to craft walls around petitioner's dance steps -- which are likely patentable. In this piece, we look at the non-precedential case of In re Brown.
So, can you patent a haircutting selection technique? Most likely not, especially if you characterize it the way the Patent Trial and Appeals Board did.
Yes, that's right. The case that would eventually become what we now know as In re Brown actually began as a patent application in 2001 that was first initially rejected and amended six times before it was rejected by PTAB last year.
What petitioners Holly Brown, Ken Novak, and Kim Goellner were trying to patent a technique which categorizes clients' head shapes. Based on these categories, the proper haircutting technique would be employed in order to obtain the desired look for a client.
If this all sounds a little iffy, it might be because this is how all hairstylists go about cutting clients' hair. Notice that Brown and friends did not seek to patent a particular style or design (more properly for copyright), but a technique. However, the circuit found that the PTAB was correct in finding that the Brown application did not meet the concreteness requirement as outlined in SCOTUS case of Alice Corp v. CLS International. In that software-related case, the Supreme Court determined that "abstract ideas" capable of being performed entirely within one's mind cannot be patented.
Applied here, the court found that Brown categorization process for heads was something that could be done entirely within someone's head and did not need outside intervention to some external technique or force. Thus, it refused to overturn the PTAB denial of grant.
This case is not precedential and it essentially stands for the notion that Alice is still good law. But it raises an even stickier point. Too many petitioners are either unaware or unable to properly apply the Alice test in the pre-petition stage which suggests one thing. The profit motive to patent a potentially bogus idea is so high that petitioners make the best economic move to file anyway.
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