Ex Parte Hartl

Board of Patent Appeals and Interferences

May 19, 2006

09815181 (B.P.A.I. May. 19, 2006)

The opinion in support of the decision being entered today was not written
for publication and is not binding precedent of the Board.

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte JOSEF ALEXANDER HARTL

____________

Appeal No. 2006-0648
Application No. 09/815,181
____________

ON BRIEF
____________

Before CAROFF, McQUADE, and BARRETT, Administrative Patent Judges.
McQUADE, Administrative Patent Judge.

DECISION ON APPEAL

Pursuant to 35 U.S.C. § 134(a), Josef Alexander Hartl appeals from the final
rejection (mailed July 3, 2003) of claims 1-42, all of the claims pending in the
application.
THE INVENTION

The invention relates to “casino card games, and more specifically, it relates to a
combination wagering game for simultaneously playing several card games”
(specification, page 1). Representative claims 1, 22 and 41 read as follows:
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1. A method of playing a combination wagering game using a standard deck of
cards, comprising:

a player making at least one of a) an Ante wager, b) a second game wager on the
player's hand having designated cards within a suit and c) a blackjack wager;

a dealer dealing at least two cards to said player and at least two cards face down
to said dealer;

playing the games of poker, the second game and blackjack in a preselected order;
and

resolving all bets in play, according to the respective rules of poker, the second
game and blackjack.

22. A video gaming apparatus, comprising a microprocessor with memory,
wherein said memory comprises software that includes a method of playing a game, the
method comprising:

a player making at least one of a) an Ante wager, b) a second game wager on a
second game that the player's hand will have predetermined cards and c) a blackjack
wager;

displaying at least two cards and no more than three cards representing a player
hand and at least two cards and no more than three cards representing a dealer hand;

playing the games of poker, the second game and blackjack in a preselected order;

and

resolving all bets in play, according to the respective rules of poker, the second
game and blackjack.

41. A method of playing a combination wagering game using a standard deck of
cards, comprising:

a player making at least one of a) an Ante wager, b) a second game wager on the
player's hand having predetermined cards and c) a best 2 blackjack wager;

a dealer dealing exactly and only three cards to said player and exactly and only
three cards face down to said dealer;

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playing the games of poker, the second game and best 2 blackjack in a preselected
order; and
resolving all bets in play, according to the respective rules of poker, the second
game and best 2 blackjack.

THE PRIOR ART

The references relied on by the examiner to support the final rejection are:

Malek 5,265,882 Nov. 30, 1993
Aramapakul 6,179,292 Jan. 30, 2001
Webb 6,345,823 Feb. 12, 2002 (filed Feb. 12, 1999)
Perkins 6,406,024 Jun. 18, 2002 (filed Oct. 05, 2000)

“TRIPOLEY” (game rules), Cadaco, Inc. (1960, 1968, 2000) (Cadaco)

Gibson, Walter B., Hoyle’s Modern Encyclopedia of Card Games, pp. 32, 33, 226, 227,
271, 272 and 371 (Broadway Books 1974) (Gibson)

Scarne, John, Scarne’s Encyclopedia of Card Games, pp. 12 and 280-283 (Harper & Row
1983) (Scarne)

THE REJECTIONS

Claim 1 stands rejected under 35 U.S.C. § 103(a) as being unpatentable over
Malek in view of Aramapakul.
Claims 2 and 19-21 stand rejected under 35 U.S.C. § 103(a) as being unpatentable
over Malek in view of Aramapakul, Gibson and Scarne.
Claims 3-9, 12-16, 18, 41 and 42 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Malek in view of Aramapakul, Gibson, Scarne and Perkins.
Claims 10, 11 and 17 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Malek in view of Aramapakul and Cadaco.
Claims 22-40 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over
Malek in view of Aramapakul, Gibson, Scarne, Perkins, Cadaco and Webb.

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Attention is directed to the main and reply briefs (filed December 8, 2003 and
October 5, 2004) and answer (mailed September 20, 2004) for the respective positions of
the appellant and examiner regarding the merits of these rejections.
DISCUSSION
Malek, the examiner’s primary reference, discloses “a method . . . for playing a
mixture of Twenty-One, a modified Poker, and Baccarat wherein a player simultaneously
plays against a dealer and other players” (column 1, lines 8-11). The following passage
from the reference summarizes Malek’s playing method:
providing a playing station for each player, said playing station
comprising:
(i) a card playing area having a first horizontal row of two
boxes, a second horizontal row of five boxes, and a third row of two
boxes;
(ii) a bank betting area positioned to one side of the card
playing area and having three positions corresponding to said first, second,
and third rows of boxes in said card playing area; and
(iii) a player betting area positioned to the other side of the
card playing area and having three positions corresponding to said first,
second and third rows of boxes in said card playing area;
each player making a first bet in at least two of said three positions
in said bank betting area of their playing station;
the dealer dealing a first card face-up to each player and one card
face-down to the dealer;
at least one player making a second bet in at least one of said three
positions in said player betting area of his playing station;
the dealer dealing additional cards face-down to each player, the
total number of cards dealt to each player being determined based on the
position of each first bet in the bank betting area of each playing station
and the number of boxes in each row corresponding to said position;
the dealer dealing to himself additional cards equal to the highest
number of cards dealt to any one player;
each player organizing his cards in up to three hands corresponding
to two cards for Twenty-one, five cards for Draw Poker and two cards for
Baccarat, and then assembling those organized cards in each of said first,
second, and third rows of boxes corresponding to each position in the bank
betting area of each player station in which the player has placed a first
bet;
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the dealer assembling his dealt cards in a playing station in a
manner corresponding to said one player having the highest number of
dealt cards;
the dealer comparing the cards assembled in each row of boxes in
his playing area to cards assembled in corresponding rows of boxes in
each player playing station and collecting or paying said first bets in each
bank betting area of each playing station; and
the dealer comparing cards assembled in each row of boxes in each
player playing station and settling said second bets between players in
each player betting area of each playing station [column 1, line 56,
through column 2, line 40].

Malek also teaches that the games are played and settled in order, preferably
Twenty-One, Draw Poker and then Baccarat (see column 6, lines 1-7), using
conventional rules (see column 5, lines 44-56) and standard fifty-two card decks (see
column 3, lines 59-61), and that the overall game can be adapted for electronic play (see
column 6, lines 66 and 67).
The playing method disclosed by Malek lacks response to the limitation in
independent claim 1 reciting a second game wager on the player’s hand having
“designated” cards within a suit and the corresponding limitations in independent claims
22 and 41 reciting a second game wager on the player’s hand having “predetermined”
cards. Malek neither teaches nor suggests any such second game wager. Recognizing
this shortcoming, the examiner looks to Aramapakul and Cadaco.
Aramapakul discloses a modification of a target numerical sum game such as
Blackjack or Baccarat. The modification allows for a supplemental wager that the cards
dealt to a player will be of the same suit.
The examiner submits that it would have been obvious “to incorporate the
teachings of Aramapakul into the disclosure of Malek wherein a simpler game, playable
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on the Blackjack hand could be incorporated into the Malek game instead of Baccarat;
i.e., for example, a mere substitution” (answer, page 5).
This proposed incorporation into the Malek game of the supplemental wager
taught by Aramapakul is reasonable on its face. The resulting game, however, would still
not meet the above noted limitations in claims 1, 22 and 41. Notwithstanding the
examiner’s arguments to the contrary (see page 18 in the answer), Aramapakul simply
does not teach or suggest a wager that a player’s hand will have “designated” cards
within a suit or “predetermined” cards.
The Cadaco reference describes the playing rules for TRIPOLEY, a series of three
sequentially played games based on Hearts, Poker and Michigan Rummy. The Hearts
portion of TRIPOLEY allows players to collect wagered chips for specific cards dealt to
them. Cadaco’s description of these specific cards encompasses predetermined cards and
designated cards within a suit.
The examiner contends that “[i]t would have been obvious to one of ordinary skill
in the art to substitute any type of well-known suit game in place of the disclosed suit
game of Aramapakul. . . . TRIPOLEY is such a notoriously well-known suits game”
(answer, pages 12 and 13).
The so-called “suit game” of Aramapakul, however, is merely an adjunct that
supplements a target numerical sum game such as Blackjack or Baccarat. The proposed
modification of Aramapakul in view of Cadaco is inconsistent with the supplemental
nature of Aramapakul’s “suit” wager as well as with the proposed modification of the
Malek game in view of Aramapakul. In short, the only suggestion for selectively
combining Malek, Aramapakul and Cadaco so as to arrive at a method and apparatus
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meeting the second game wager limitations in independent claims 1, 22 and 41 stems
from hindsight knowledge impermissibly derived from the appellant’s disclosure.
Moreover, this fundamental flaw in the examiner’s application of Malek, Aramapakul
and Cadaco finds no cure in the additional application of Gibson, Scarne, Perkins and/or
Webb.
Independent claim 22 also recites the step of displaying at least two cards and no
more than three cards representing the respective hands of a player and the dealer. In the
same vein, independent claim 41 recites the step of dealing exactly and only three cards
to a player and to the dealer. The examiner turns to Aramapakul and Perkins to account
for the acknowledged failure of Malek to meet these limitations.
As discussed above, Aramapakul pertains to a supplemental wager for target
numerical sum games such as Blackjack and Baccarat. Perkins discloses a supplemental
wager for Three Card Poker. According to the examiner (see pages 8 and 9 in the
answer), it would have been obvious in view of Aramapakul and Perkins to simplify the
Malek game by using only two or three cards. Here again, however, the only suggestion
in the applied references for such a selective and substantial modification of the Malek
game stems from hindsight knowledge impermissibly derived from the appellant’s
disclosure.
Hence, the combined teachings of the references applied by the examiner do not
justify a conclusion that the differences between the subject matter recited in independent
claims 1, 22 and 41 and the prior art are such that the subject matter as a whole would
have been obvious at the time the invention was made to a person having ordinary skill in
the art. Accordingly, we shall not sustain the standing 35 U.S.C. § 103(a) rejection of
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independent claim 1 as being unpatentable over Malek in view of Aramapakul, the
standing 35 U.S.C. § 103(a) rejection of dependent claims 2 and 19-21 as being
unpatentable over Malek in view of Aramapakul, Gibson and Scarne, the standing 35
U.S.C. § 103(a) rejection of independent claim 41 and dependent claims 3-9, 12-16, 18
and 42 as being unpatentable over Malek in view of Aramapakul, Gibson, Scarne and
Perkins, the standing 35 U.S.C. § 103(a) rejection of dependent claims 10, 11 and 17 as
being unpatentable over Malek in view of Aramapakul and Cadaco, or the standing 35
U.S.C. § 103(a) rejection of independent claim 22 and dependent claims 23-40 as being
unpatentable over Malek in view of Aramapakul, Gibson, Scarne, Perkins, Cadaco and
Webb.
SUMMARY
The decision of the examiner to reject claims 1-42 is reversed.
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Application No. 09/815,181

REVERSED

MARC L. CAROFF )
Administrative Patent Judge )
)
)
) BOARD OF PATENT
JOHN P. McQUADE ) APPEALS
Administrative Patent Judge ) AND
) INTERFERENCES
)
)
LEE E. BARRETT )
Administrative Patent Judge )

JPM/lp
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