July 24, 2020

Weight Loss Patent Application Does Not Survive Section 101 Scrutiny

Holland & Knight Section 101 Blog
Anthony J. Fuga
Section 101 Blog

Earlier this month, the U.S. Court of Appeals for the Federal Circuit affirmed the Patent Trial and Appeal Board's (PTAB) rejection of a patent application that described a method for weight loss that "removes hunger from weight loss." The representative patent claim recites:

A process wherein, on day one, you--which stands for a user of the process--cut your food intake during all three regular meals, breakfast, lunch, and dinner, by 1/3 and keep it that way for 3 months, and follow the how-to-eat rules:

(1) no food unless you are hungry, or it is your regular mealtime, breakfast, lunch, or dinner,

(2) if you are hungry and it is not your regular mealtime, you drink a glass of water, first, and wait 10-15 minutes; if you are still hungry, then you eat a snack, and

(3) the amount of the snack is determined by your BMI (body mass index) and the time left before the next regular meal or bedtime, whichever comes first.

The Federal Circuit made quick work of the appeal. At step one of the Alice inquiry, the appellate court agreed with the PTAB that the patent claims were directed to an abstract idea – "nothing more than reducing food intake to achieve weight loss and snacking to curb hunger," which is something that humans have long managed. The degree of particularity in the claim – such as waiting 10 minutes after drinking a glass of water – did not affect the court's step one analysis.

The applicant argued that the claim represented "specific improvements in the field of calorie-restrictive diets." This was unpersuasive. "Solving the 'hunger problem' in calorie-restricted weight-loss diets is neither a technical improvement tied to a specific apparatus nor an improvement of an existing technological process." Instead, the solution to the hunger problem is itself an ineligible abstract idea.

The applicant also argued that the claims are akin to patent-eligible claims that teach a treatment of a disease. But the court disagreed. "We did not hold that all methods of treating a disease are categorically patent eligible, but explained that the claims at issue were patent eligible because they were directed to a specific method of treatment for specific patients using a specific compound at specific dose to achieve a specific outcome." Here, the claims merely direct a user to manage his or her food intake according to rules that humans have long followed.

At step two, the patent applicant argued that the inventive concept is "marrying a hunger-eliminated, calorie-restricted diet with the iterative process to efficiently squeeze excess food out of daily food intake." This, the court determined, is nothing more than the abstract idea itself. For these reasons, the court affirmed the PTAB's conclusion that the patent claims were ineligible under Section 101.

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