Case: 20-1254    Document: 35     Page: 1   Filed: 07/08/2020




        NOTE: This disposition is nonprecedential.


   United States Court of Appeals
       for the Federal Circuit
                  ______________________

                IN RE: ZACH ZUNSHINE,
                         Appellant
                  ______________________

                        2020-1254
                  ______________________

     Appeal from the United States Patent and Trademark
 Office, Patent Trial and Appeal Board in No. 15/726,162.
                   ______________________

                   Decided: July 8, 2020
                  ______________________

    ZACH ZUNSHINE, Boston, MA, pro se.

    MONICA BARNES LATEEF, Office of the Solicitor, United
 States Patent and Trademark Office, Alexandria, VA, for
 appellee Andrei Iancu. Also represented by THOMAS W.
 KRAUSE, AMY J. NELSON, FARHEENA YASMEEN RASHEED.
                 ______________________

    Before PROST, Chief Judge, NEWMAN and O’MALLEY,
                     Circuit Judges.
 PER CURIAM.
     Zach Zunshine appeals from a decision of the Patent
 Trial and Appeal Board (“Board”) affirming the rejection of
 claims 1–3 of U.S. Patent Application No. 15/726,162 (“the
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 2                                            IN RE: ZUNSHINE




 ’162 application”) as ineligible for patenting under
 35 U.S.C. § 101. We affirm.
                               I
     Mr. Zunshine filed the ’162 application in October
 2017. The application 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.” As suggested by this title, the ’162 applica-
 tion purports to describe a method for weight loss that “re-
 moves hunger from weight loss.” J.A. 26, ¶ 7. The
 application includes claims 1–3, each of which is independ-
 ent. See J.A. 16. Claim 1 is representative of the issues on
 appeal. Claim 1 recites:
     1. A process wherein, on day one, you--which
        stands for a user of the process-- cut your food
        intake during all three regular meals, break-
        fast, 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 din-
        ner, (2) if you are hungry and it is not your reg-
        ular 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 in-
        dex) and the time left before the next regular
        meal or bedtime, whichever comes first.
 J.A. 16.
     The examiner determined that claims 1–3 are directed
 to abstract ideas and finally rejected the claims as patent
 ineligible under 35 U.S.C. § 101. The Board affirmed. In
 its decision on appeal, the Board applied the two-step
 framework for analyzing eligibility established by the Su-
 preme Court in Mayo Collaborative Services v. Prometheus
 Laboratories, Inc., 566 U.S. 66 (2012), and Alice Corp. v.
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 IN RE: ZUNSHINE                                              3



 CLS Bank International, 573 U.S. 208 (2014). As to step
 one of the two-step framework, the Board agreed with the
 examiner that claims 1–3 recite an abstract idea, and citing
 support from the Patent and Trademark Office’s 2019 Re-
 vised Patent Subject Matter Eligibility Guidance, 84 Fed.
 Reg. 50 (Jan. 7, 2019) (“Office Guidance”), specifically con-
 cluded that the claims describe methods of “managing per-
 sonal behavior.” J.A. 7 (quoting Office Guidance, 84 Fed.
 Reg. at 52); see also J.A. 8. As to step two, the Board con-
 cluded that claims 1–3 do not recite any limitations that
 integrate the abstract idea into a practical application.
     Mr. Zunshine timely appealed, arguing that the Board
 erred in holding that claims 1–3 are directed to an abstract
 idea and therefore erred in holding the claims ineligible un-
 der § 101.     We have jurisdiction under 28 U.S.C.
 § 1295(a)(4)(A).
                               II
      “We review the [Board’s] factual findings for substan-
 tial evidence and its legal conclusions de novo.” Redline
 Detection, LLC v. Star Envirotech, Inc., 811 F.3d 435, 449
 (Fed. Cir. 2015). Whether a claim is drawn to patent-eligi-
 ble subject matter under 35 U.S.C. § 101 is a question of
 law, which we review de novo. SRI Int’l, Inc. v. Cisco Sys.,
 Inc., 930 F.3d 1295, 1302 (Fed. Cir. 2019).
     Applying the Supreme Court’s two-step Alice/Mayo
 framework, we first must determine whether the claims at
 issue are directed to a patent-ineligible concept, such as an
 abstract idea or a law of nature. Alice, 573 U.S. at 217. If
 they are, we must “consider the elements of each claim both
 individually and ‘as an ordered combination’ to determine
 whether the additional elements ‘transform the nature of
 the claim’ into a patent eligible application” of that abstract
 idea or natural law. Id. (quoting Mayo, 566 U.S. at 72).
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                               A
     We conclude, as the Board did, that under step one of
 the Alice/Mayo inquiry, claims 1–3 are directed to an ab-
 stract idea. Although the Board’s analysis under step one
 relied on a recitation of the Office Guidance, which we re-
 cently reiterated does not modify or supplant controlling
 case law, see In re Rudy, 956 F.3d 1379, 1383 (Fed. Cir.
 2019), we determine that in this case the Board’s reasoning
 and conclusions are nevertheless in accord with the rele-
 vant case law. Claims 1–3 recite processes in which a user
 cuts his or her food intake by a particular amount during
 regular mealtimes, follows prescribed “how-to-eat rules”
 for eating outside of the regular mealtimes, and maintains
 the regime for at least three months. Each of claims 1–3
 amount to nothing more than reducing food intake to
 achieve weight loss and snacking to curb hunger. Humans
 have long managed their personal diets in such a manner,
 and thus claims 1–3 are directed to an abstract idea. See
 Bilski v. Kappos, 561 U.S. 593, 611–12 (2010). The 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.” Trading Techs. Int’l, Inc. v. IBG
 LLC, 921 F.3d 1084, 1092 (Fed. Cir. 2019).
      Mr. Zunshine’s arguments to the contrary are not per-
 suasive. First, Mr. Zunshine argues that claims 1–3 are
 not directed to abstract ideas because these claims “repre-
 sent specific improvements in the field of calorie-restrictive
 diets.” Appellant’s Br. 16–20. In so arguing, Mr. Zunshine
 analogizes the ’162 application to the patent-eligible claims
 in 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).
 But unlike the specific improvements recited by the claims
 in those cases, the purported improvement in claims 1–3—
 i.e., 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
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 IN RE: ZUNSHINE                                            5



 technological process. Instead, in this case, the solution to
 the hunger problem in claims 1–3 is itself an ineligible ab-
 stract idea.
     Mr. Zunshine next argues that claims 1–3 teach the
 treatment of a disease and are patent eligible like the
 claims in Vanda Pharmaceuticals Inc. v. West Ward Phar-
 maceuticals International, Ltd., 887 F.3d 1117 (Fed. Cir.
 2018). Mr. Zunshine asserts that “Vanda teaches that a
 treatment of a disease is not directed to a judicial excep-
 tion, and, thus, is patent-eligible subject matter,” Appel-
 lant’s Br. 22, and that claims 1–3 are similarly directed to
 a “specific method of treating the disease of obesity and its
 sister diseases afflicting the overweight and obese,” Appel-
 lant’s Br. 20. Mr. Zunshine is wrong. In Vanda, 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.”
 887 F.3d at 1136 (emphases added). Claims 1–3 are quite
 different. The claims 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. Such personal
 management of food intake is an abstract idea that is not
 patent eligible.
                              B
     Turning to step two of the Alice/Mayo inquiry, we con-
 clude that nothing in the elements of the claims, either in-
 dividually or as an ordered combination, transforms the
 nature of claims 1–3 into a patent-eligible application of
 the abstract idea recited therein.
     Mr. Zunshine argues that the inventive concept in
 claim 1 is “solving the hunger problem for calorie-restricted
 diets, and, thus, assuring sustained weight loss, long-
 term,” and that the inventive concept in claims 2–3 is “mar-
 rying a hunger-eliminated, calorie-restricted diet with the
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 6                                             IN RE: ZUNSHINE




 iterative process to efficiently squeeze excess food out of
 daily food intake.” Appellant’s Br. 25. Mr. Zunshine fur-
 ther asserts that the elements of claims 1–3 are not found
 in the prior art and that together the elements produce
 “spectacular” weight loss. Appellant’s Br. 26.
      The purported inventive concepts identified by
 Mr. Zunshine are nothing more than the abstract ideas
 themselves. As we have often explained, the abstract idea
 to which a claim is directed is not an inventive concept.
 See, e.g., BSG Tech LLC v. Buyseasons, Inc., 899 F.3d 1281,
 1290–91 (Fed. Cir. 2018). To the extent Mr. Zunshine re-
 lies on the suggested novelty of the claims, that too fails to
 transform the abstract idea of limiting food intake into a
 patent-eligible process. See Mayo, 566 U.S. at 90.
                              III
     We have considered Mr. Zunshine’s additional argu-
 ments and find them unpersuasive. For the foregoing rea-
 sons, the Board’s conclusion that claims 1–3 of the
 ’162 application are ineligible under § 101 is affirmed.
                         AFFIRMED
                            COSTS
     The parties shall bear their own costs.
