In a recent decision, the Federal Circuit found a hair cutting method patent ineligible.  While some will read this case as saying that hair cutting methods are not patentable, that would be a mistaken conclusion and would further miss a key underlying issue at play in this case.

The case is in re Brown, with claim 1 reproduced below:

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.

This was a relatively easy case for the court since steps (a)-(d) can essentially be carried out in one's mind, and the last step (e), while being physical, looks very much like instructions to "apply" the ideas that were in one's head. Nothing in the opinion seems to indicate that the claims are unpatentable because they are directed to a hair cutting method.

One reason this case is interesting and can be instructive to patent professions is that it has strong analogies to the common issue of highly technical inventions that relate to how to design a product, for example. Often engineers develop design rules and methodologies for designing a specific component or control system.  These rules and methodologies can be highly technical and based on years of research, finite element numerical analysis, testing, modeling, etc. Unfortunately, they often result in claims where infringement can only be detected by knowing what was in someone's mind when they designed a product. While in the end there is often a physical manifestation (e.g., a product), there is a concern that the end product was developed by simply "applying" what the court would call an abstract idea. In this way, even highly technical engineering inventions can fall victim to a Section 101 patent eligibility analysis.

While it can be extremely challenging to reduce the chances of Section 101 problems with inventions of this sort, there are some strategies available. For example, one option is to try and transform the inventive engineering design process or rules into structural features of the resulting product.  This may include aspects such as the relative positioning of components, ratios of component sizing, etc. Another option is to try and tie the steps of a method to real world analytical tools or platforms. Of course, one must be careful to consider whether the trade secret route is more appealing, as giving away a design methodology with limited patent protection may tip the balance to weigh against patent filings.