In re Zunshine (Fed. Cir. 2020) | McDonnell Boehnen Hulbert & Berghoff LLP

Last week, the Federal Circuit affirmed the rejection by the Patent Trial and Appeal Board of claims 1-Three of U.S. Patent Application No. 15/726,162 as being patent ineligible beneath 35 U.S.C. § 101.  The ‘162 software, which is entitled “An Iterative Process of Squeezing Excess Food out of Daily Food Intake to Achieve and Maintain Weight Loss Using Hunger as a Feedback Mechanism,” is directed to a technique for weight reduction.  The ‘162 software incorporates three impartial claims, of which declare 1 is consultant:

1.  A course of whereby, on day one, you–which stands for a consumer of the process– minimize your meals consumption throughout all three common meals, break-fast, lunch, and dinner, by 1/Three and maintain it that method for Three months, and comply with the how-to-eat guidelines: (1) no meals except you’re hungry, or it’s your common mealtime, breakfast, lunch, or dinner, (2) in case you are hungry and it isn’t your common mealtime, you drink a glass of water, first, and wait 10-15 minutes; in case you are nonetheless hungry, then you definately eat a snack, and (Three) the quantity of the snack is set by your BMI (physique mass index) and the time left earlier than the following common meal or bedtime, whichever comes first.

During prosecution of the appliance, the Examiner rejected claims 1-Three of the ‘162 software as being patent ineligible beneath § 101.  The Applicant, Mr. Zach Zunshine, appealed the rejection to the Board, which affirmed the Examiner’s rejection.  In specific, the Board agreed with the Examiner that the claims recite an summary thought, concluding that the claims describe strategies of managing private conduct, and that the claims don’t recite any limitations that combine the summary thought right into a sensible software.

In affirming the Board, the Federal Circuit equally concluded that claims 1–Three are directed to an summary thought.  The Court defined that “[e]ach of claims 1–3 amount to nothing more than reducing food intake to achieve weight loss and snacking to curb hunger,” including that “[h]umans have long managed their personal diets in such a manner, and thus claims 1–3 are directed to an abstract idea.”  Citing Trading Techs. Int’l, Inc. v. IBG LLC, 921 F.3d 1084, 1092 (Fed. Cir. 2019), the Court additionally famous that “[t]he fact that the claims might add a ‘degree of particularity’ as to the amount that food intake is reduced ‘does not impact our analysis at step one.'”

In response to the Applicant’s argument that claims 1–Three aren’t directed to summary concepts as a result of these claims “represent specific improvements in the field of calorie-restrictive diets,” analogizing the ‘162 software to McRO, Inc. v. Bandai Namco Games America, 837 F.3d 1299 (Fed. Cir. 2016), and Rapid Litigation Management, Ltd. v. CellzDirect, Inc., 827 F.3d 1042 (Fed. Cir. 2016), the Court responded that:

[U]nlike the precise enhancements recited by the claims in these instances, the purported enchancment in claims 1–Three—i.e., fixing the “hunger problem” in calorie-restricted weight-loss diets—is neither a technical enchancment tied to a selected equipment nor an enchancment of an present technological course of.  Instead, on this case, the answer to the starvation downside in claims 1–Three is itself an ineligible summary thought.

In response to the Applicant’s argument that claims 1-Three educate the remedy of a illness (i.e., weight problems and illnesses afflicting the chubby and overweight) and are patent eligible just like the claims in Vanda Pharmaceuticals Inc. v. West Ward Pharmaceuticals International, Ltd., 887 F.3d 1117 (Fed. Cir. 2018), the Court disagreed, noting that:

In Vanda, we didn’t maintain that every one strategies of treating a illness are categorically patent eligible, however defined that the claims at situation have been patent eligible as a result of they have been directed to “a particular technique of remedy for particular sufferers utilizing a particular compound at particular dose to attain a particular final result.”  887 F.3d at 1136 (emphases added).  Claims 1–Three are fairly completely different.  The claims merely direct a consumer to handle his or her meals consumption in line with a collection of guidelines that people have lengthy adopted in managing their diets.  Such private administration of meals consumption is an summary thought that’s not patent eligible.

The Court decided that the claims of the ‘162 software have been completely different from these discovered to be patent eligible in Vanda, mentioning that the claims at situation right here “merely direct a user to manage his or her food intake according to a series of rules that humans have long followed in managing their diets,” and concluding that “[s]uch personal management of food intake is an abstract idea that is not patent eligible.”

Turning to the second step of the Alice/Mayo inquiry, the Court decided that nothing within the claims, both individually or as an ordered mixture, remodeled the claims right into a patent-eligible software of the summary thought recited therein.  In response to the Applicant’s argument that the weather of claims 1–Three aren’t discovered within the prior artwork and collectively the weather produce “spectacular” weight reduction, the Court responded that “[t]he purported inventive concepts . . . are nothing more than the abstract ideas themselves,” and that the prompt novelty of the claims fails to rework the summary thought of limiting meals consumption right into a patent-eligible course of.  The Court subsequently affirmed the Board’s dedication that claims 1-Three of the ‘162 software are patent ineligible beneath § 101.

In re Zunshine (Fed. Cir. 2020)
Nonprecedential disposition
Panel: Chief Judge Prost and Circuit Judges Newman and O’Malley
Per curiam opinion

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