Almost Cut My Hair

by Dennis Crouch

Michael Kwun‘s new Greenbag article titled Alice Tells a Joke offers the following:

A patent lawyer walks into a barber shop. The barber takes a look at the lawyer for a bit, and then says, “Ok, that’ll be $20.” The lawyer responds, “But you didn’t cut my hair!” The barber replies, “That’s ‘insignificant post-solution activity.’”

Kwun’s short analysis considers In re Brown, No. 2015-1852 (Fed. Cir. Apr. 22, 2016) (nonprecedential opinion), where the Federal Circuit ruled that the claimed “method of cutting hair” lacks subject matter eligibility.

The rejected claim:

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.

My 2011 video is somewhat on point: HairCut

55 thoughts on “Almost Cut My Hair

  1. In a post beyone 3.1.1.2.1.1.1 Ned said:

    “Flying an airplane and trailing smoke is also a process. That does not mean particular patterns of smoke are patentable.”

    The claim in question is not for particular hair styles. Instead, it is for a method of tailoring hair-styling to the customers head.

    As for patenting methods of blowing smoke:

    19. A method for producing aerial messages, the method comprising:
    transmitting puff data from a computer to a plurality of controllers located in a plurality of aircraft, the puff data including an indication of whether each of the plurality of aircraft is to emit a vapor puff; and
    receiving status data at the computer from each of the plurality of controllers, the status data indicating whether the vapor puff was emitted by each of the plurality of aircraft.

    link to patents.google.com

    Stick that in your pipe and smoke it, Puff Daddy.

    1. See also:

      5. A method of sky typing utilizing only one airplane to accomplish the printing of letters, numbers, words, designs and like indicia in the sky, the sky typing method comprising:
      (a) suspending a plurality of vertically spaced fog emitting nozzles from an airplane as it travels through the sky, and
      (b) selectively emitting fog producing material from the vertically spaced nozzles in a predetermined sequence to form individual portions of indicia, the individual portions combining to form complete indicia, and
      (c) adjusting the predetermined sequence of emission of fog producing material from each individual nozzle according to variations in airplane speed, wind and other factors which affect the proper positioning of the individual indicia portions for combining with other portions to form complete indicia.

      link to patents.google.com

      1. The process of artificially producing vapor trails for sky writing comprising the steps of passing an airfoil through the air creating a low pressure region behind the airfoil causing the adjacent air to expand adiabatically into the low pressure region, thereby lowering the heat content of the air in said region and thereby causing the liquid content of said region to be reduced .in heat content below the freezing point, and spraying water behind the airfoil and in-the region to freeze.

      link to patents.google.com

      6. The method of forming letters and symbols in smoke comprising the steps of assigning to each of a plurality of airplanes particular portions of successive letters and symbols, flying said airplanes in substantially parallel paths, releasing smoke trails from said airplanes, the length and placement of which trails are controlled by a patterned record in each airplane, said records all being started at the same time by presettable timing means, said smoke trails being contiguous and parallel and cooperating to form successive, individual letters or symbols.

      7. The method of forming smoke trails comprising the steps of flying a plurality of airplanes in substantially parallel paths, releasing smoke trails from said airplanes, the length and placement of which trails are controlled by a series lof substantially identical patterned records, one for each airplane, each plane however releasing smoke trails only in accordance with a particular portion of the record assigned to that plane, said records all being started at the same time by presettable timing means.

      link to patents.google.com

  2. It is difficult to see how the claim has merit.

    However, it would have been reassuring if the court had taken a picosecond or two to consider the substantive requirements of the four eligible categories of section 101 before diving off into the less certain realm of abstract idea exception.

    Some lip service to statutory compliance and less enthusiasm for judicial activism would be a welcome development. Indeed, it might be said that failure to consider statutory compliance amounts to negligence.

    1. They were “just applying” the lesson learned from the Supreme Court (not bother with defining things like “abstract” or “significantly more”).

      It is indeed difficult to apply the law when the top court does not bother to do so, but is instead intent on reaching a desired Ends, and hand waving the rest.

      Having the last word (in the judicial chain) does NOT mean that that last word is automatically correct and itself above the law.

      This is not common law that we are dealing with.

      1. “anon” It is indeed difficult to apply the law

        ROTFLMAO

        Says the guy who never saw a junk claim he couldn’t embrace.

        1. ???

          Since when do I EVER embrace the “junk claims” that you want to play Br’er Rabbit with…?

          Funny how you keep on seem to miss the actual discussions of law.

          Not in a good way, mind you.

          Any time you want to join a dialogue on the law, feel free to pick yourself up off the floor, stifle your laughing, and join an inte11ectually honest dialogue (personally, I won’t be holding my breath seeing as your Decade of Decadence pretty much shows that such is simply beyond your ability).

    2. It is difficult to see how the claim has merit.

      Because it has none.

      How about we sanction the attorneys who filed it?

      Banning for life would seem reasonable.

      Oh but wait! It’s so much easier to whine about the Supreme Court and how unfair it all is. Boo hoo hoo.

  3. It would be nice if we got back into reality. The barber shop joke illustrates how realty no longer plays a role in our jurisprudence. Thanks Obama for appointing judges with no science background and no patent law background to the one court in the US where a judge is supposed to have a science background.

    1. How about tech-literate judges for the courts of first instance, where the facts are found? Isn’t that even more important?

      1. Max, the facts are normally tried to a jury. What the judge does is claim construction. Here, all he is doing is resolving a battle of experts.

  4. A patent lawyer walks into a barber shop. The barber takes a look at the lawyer for a bit, and then says, “Ok, that’ll be $20.” The lawyer responds, “But you didn’t cut my hair!” The barber replies, “Oh, I need to see that you’ve taken the appropriate licenses before I think about how to cut your hair.’”

    HAHAHAHAHAAHAHAHAHAHAHA!

    You know who has a really awesome haircut? David Kappos.

    LOLOLOLOLOLOLOLOLOLOLOLOLOLOLOL

  5. Lol good one DC.

    On the political note here’s an article ol MM might like to read about his democratic party and how much of a chance his preferred candidate ever had.

    1. MM might like to read about his democratic party and how much of a chance his preferred candidate ever had

      Because Salon magazine is known for its super serious political analysis. Thanks, 6. I’ll get right on that.

      LOL

      1. Aside from the “super serious” (and super spurious) comment, are you saying that you endorse this type of “G-g-grifting” when it comes to “business as usual” party politics?

        You seem quite content with this type of wink wink wonk wanking.

        Time to put Bernie down as a write-in. Send the message that the “super serious” Super Delegates are an affront to the process.

        1. MM et al. are all about the liberal elites bro, they just don’t want to call them “liberal elites” or for anyone else to call them that either.

          1. the liberal elites

            LOLOLOLOLOLOLOLOLOLLOLOLOLOLOLOLOLOLOLOLOL

            First we come for guns, then we come for your bathrooms.

            Oh, so many freedums to worry about with all those “liberal elites” gettin’ up in your properties.

            LOLOLOLOLOLOLOLOLOLOL

            If people like you didn’t exist, 6, we’d have to make them up for the laughs. Thankfully we know you exist because you’re on cable TV and AM radio 24-7.

            LOLOLOLOLOLOL

  6. That claim does not describe a method of cutting hair. It describes and claims a method of hairstyling where the pattern is the invention.

    Take the player piano. I claim the improved song — played on a player piano. Playing the song adds nothing to the substance of the claimed invention.

    1. idk about that, it looks like matching the style to the head shape is the invention, so as to accommodate the head shape.

          1. Is that like “just using” a computer with a pre-existing Arrhenius equation? Or maybe first re-configuring a computer to just “apply that math”…?

            😉

        1. …and 3D printing is a method of styling goop?

          Whats your point? Swap the word cutting our with styling in the claim. Now what?

          It IS a method of making something isn’t it? Something physical gets modified, does it not?

          1. Les, good analogy. The technology is 3-D printing. It may be used for a lot of things. But simply reciting 3-D printing does not justify patenting things that themselves are not new or improved manufacturers, machines or compositions.

                1. 1) A hair cut is a manufacture.

                  2) Even if a hair cut is not a manufacture, cutting or styling hair is a process. Processes are patentable subject matter.

                2. Flying an airplane and trailing smoke is also a process. That does not mean particular patterns of smoke are patentable.

                3. I believe the claim here is to a process that involves both selecting a hairstyle based on determined head parameters and implementing said selected hairstyle. I see no reason why that does not pass 101.

                  As for blowing smoke, you should at least able to be nominated for some award. Maybe the DoD or a Movie special effects guild offer one.

                4. I see no reason why that does not pass 101.

                  Next up: the lack of progress in fingernail clipping arts.

                  What is society to do????

                5. Are you angling for one of your “but-for” and field of rye feelings about what should and should not be patent eligible…?

                  Let me know when such “morality” is written into patent law – by the branch of government authorized to write patent law.

  7. Now the whole world of software patents had one statute and a common interpretation of software eligibility. As the people moved past Bilski, they found a plain in the Eastern District of Texas and settled there.

    They said to each other, “Come, let us claim inventions and describe them vaguely.” They used results instead of algorithms, and generic computers for structure.

    And they said, “Come, let us build ourselves a patent claiming a computer-based data processing system to enable the formulation of customized multi-party risk management contracts having a future time of maturity, and a ladder of abstraction whose top is in the heavens; let us make a name for ourselves, lest our wealth be scattered abroad over the face of the whole earth.”

    But the SCotUS came down to see the patent and the ladder which the sons of Rich had built.

    And the SCOTUS said, “Indeed the people are one and they all have one interpretation of 101, and this is what they begin to do; now nothing that they propose to have invented will be withheld from them by the PTO.

    Come, let Us go down and there confuse their statute, that they may not acquire patents for concepts applied with a generic computer.”

    So the SCotUS scattered them abroad from there over the face of all the earth, and they ceased building the patent.

    Therefore its name is called Alice, because there the SCotUS confused the statute of patent eligibility, and from there the SCotUS scattered their wealth abroad over the face of all the earth.

    1. Bob, the tale sounds about right, but Rich and Kennedy confused, and Alice and Mayo/Alice is putting it right.

      The idea that a song might be patentable subject matter for the recital of a player piano or CD, or that a method of hairstyling for the recital of cutting hair, is ludicrous. But that is the what Rich brought us: nominalism.

      1. Ned,

        Your “version” of nominalism is off-kilter because you are (purposefully?) ignoring an important underlying point here: the exceptions to the judicial doctrine of printed matter make your attempts to conflate those things outside of the Useful Arts simply not germane to the discussion.

        You are using a canard to confuse.

        Once again, the simple set theory explication that I provided to you long ago takes care completely of your fallacious attempts here.

        You pursue your agenda with (continued) unethical means.

        For shame.

    2. This is one of the best posts on PO ever. I don’t like some parts, just like I don’t like some parts of other sacred scriptures, but still, 10/10 post.

    3. Cute writing Bob (no snark).

      But it rather draws the question of proper authority to write the statutory law that is patent law into focus, does it not?

      That the Court deigns itself “gods” to purposefully confuse the direct words of Congress because the Court has a different desired end is actually the problem here.

      1. He should add on:

        And then the Congress observed these things they pondered them in their hearts. Whereupon, finding goodness, they nodded in approval at all these things.

        1. Except that “approval” STILL needs to come in the Words of Congress.

          Commandment Number 1: You shall have no other gods before Me.

          1. (you also forget that Congress ALREADY REJECTED what the Supreme Court is now doing in the times of 1952.

            Prior to 1952, Congress HAD shared its authority with the Court to define the meaning of the word “invention” through the power of common law evolution.

            That just did not happen, and the Court abused that power so much with its “inventive gist” that Congress reacted and INSTEAD put in place 103 – deliberately not even using the word “invention.”

            And THAT is a fact.

          2. Anon, son of Failingphysics, then arose from his encampment and found the Scoreboard to be not to his liking and was much butthurt.

            “Prior to 1952, Congress HAD shared its authority with the Court to define the meaning of the word “invention” through the power of common law evolution.”

            Yeah but the USSC found like a couple of years after 1952 that it didn’t seem like congress intended to take that authority back. They have yet to do so.

            “That just did not happen, and the Court abused that power so much with its “inventive gist” that Congress reacted and INSTEAD put in place 103 – deliberately not even using the word “invention.””

            True, but they left in “invents or discovers”. Oppsy.

    4. and lo after many suns and moons, out upon the ‘tubes 101 was observed by the unwashed

      and the unwashed read of the scattered wealth and had many scattered interpretations of 101

      and some followed MM, and some followed 6 and some few the Ned, but none abided anon, and lurked several amici

      and legend said if one could do it in ones head, and other myth said with a pencil and some said a machine that was new and others that it was unchanged under the sun

      and the half-built patent kept swallowing, and the plain remained prosperous, for there was no heart in Heartland…

      and it was said that someday an advocate would come forth, and bring the people back.

        1. As I said – your effort was admirable.

          You just need to draw the parallels a little deeper to which branch actually has the authority to write the statutory law that is patent law (and it is NOT your “false idols”)

  8. This claim is broad enough to cover robotic scissor-cutting of the hairs of the head of a cat. Good luck with that! The famous patent on playing with a cat with a flashlight beam has greater utility.
    ————-
    A great “insignificant post-solution activity” joke. But I would bet there are fancy Manhattan salons where that is all the Chief hair stylists do for their high fees!

    1. Given the difficulty of trimming a cat’s nails, a robot capable of cutting one’s hair is well beyond our present level of technology. Someone will probably invent one eventually, likely not long after interplanetary teleportation or a cure for the cold.

      1. Nonsense. You’re just not one of ordinary skill in that art. Scissors + Expert system + Hair cutting Rules = Enabled Robot Barber.

        1. Scissors + Expert system + Hair cutting Rules = Enabled Robot Barber.

          ROTFLMAO

          My improved version can be turned on remotely. From a car!

          And it’s all thanks to Attribution Values. Someday Hector Attribution, Jr. will get the Nobel prize he deserves.

          1. In a post beyone 3.1.1.2.1.1.1 Ned said:

            “Flying an airplane and trailing smoke is also a process. That does not mean particular patterns of smoke are patentable.”

            The claim in question is not for particular hair styles. Instead, it is for a method of tailoring hair-styling to the customers head.

            As for patenting methods of blowing smoke:

            19. A method for producing aerial messages, the method comprising:
            transmitting puff data from a computer to a plurality of controllers located in a plurality of aircraft, the puff data including an indication of whether each of the plurality of aircraft is to emit a vapor puff; and
            receiving status data at the computer from each of the plurality of controllers, the status data indicating whether the vapor puff was emitted by each of the plurality of aircraft.

            link to patents.google.com

            Stick that in your pipe and smoke it, Puff Daddy.

            :-p

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