Ex Parte Snow

Patent Trial and Appeal Board

Feb 6, 2018

13631816 (P.T.A.B. Feb. 6, 2018)

United States Patent and Trademark Office
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O.Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
13/631,816 09/28/2012 Roger M. Snow 3286-11214(PA3794.ap.US) 1008
66137 7590 02/08/2018
TRASKBRITT, P.C. /Bally Gaming, Inc.
PO Box 2550
Salt Lake City, UT 84110
EXAMINER
PIERCE, WILLIAM M
ART UNIT PAPER NUMBER
3711
NOTIFICATION DATE DELIVERY MODE
02/08/2018 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
U S PTOMail @ traskbritt .com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ROGER M. SNOW1
Appeal 2017-005153
Application 13/631,816
Technology Center 3700
Before LINDA E. HORNER, JOHN C. KERINS, and JAMES P. CALVE,
Administrative Patent Judges.
CALVE, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from the Final Office
Action rejecting claims 1—33, 35, 37, and 39. Appeal Br. 8. We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 Bally Gaming, Inc. and Scientific Games Corporation are identified as the
real parties in interest. Appeal Br. 5.
Appeal 2017-005153
Application 13/631,816
CLAIMED SUBJECT MATTER
Claims 1, 12, and 23 are independent. Claim 1 is illustrative and is
reproduced below.
1. A computer-implemented method of playing a wagering
game, comprising:
receiving, by a user interaction server of a gaming system and from a
user device, an ante wager associable with a player;
dealing, by the user interaction server, at least one card associable
with a player position associable with the player;
dealing, by the user interaction server, at least one card associable
with a dealer position;
dealing, by the user interaction server, at least one community card;
administering an initial play election event, comprising:
displaying, by a client of the user interaction server and on a
display of the user device, first options for the player
associable with the user device, the first options
consisting of
a check, and
a first play wager against a dealer hand associable with
the dealer position and of an amount at least equal
to an amount of the ante wager and no more than a
first multiple of the amount of the ante wager; and
after the at least one card associable with the player position is
displayed, receiving, by the user interaction server and
from the user device associable with the player, a first
play election selected by the player from the first options
and input by the player using the user device;
revealing, by the client of the user interaction server to the user
device, the at least one community card;
administering at least one subsequent play election event, comprising:
responsive to revealing the at least one community card and
before receiving a play wager associable with the player,
displaying, by the client of the user interaction server and
on the display of the user device, second options for the
player associable with the user device, the second options
consisting of a fold, and
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Application 13/631,816
a second play wager against the dealer hand and that is
no more than a second multiple of the amount of
the ante wager and less than the first multiple of
the amount of the ante wager; and
receiving, by the user interaction server and from the user
device associable with the player, a second play election
selected by the player from the second options and input
by the player using the user device; and
resolving, by the gaming system, all received wagers,
wherein no more than one play wager against the dealer hand is
received, and
wherein a final play election selected from options comprising a play
wager against the dealer hand follows distribution of all cards
available for a player hand associated with the player position,
follows administration of at least the initial play election event,
and is not preceded by receipt of the first play wager during the
initial play election event.
Appeal Br. (Claims App. 1—2).
REJECTIONS2
Claims 1—33, 35, 37, and 39 are rejected as being directed to patent
ineligible subject matter under the judicial exception to 35 U.S.C. § 101.
Claims 1 and 7—11 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Jones (US 5,380,012, iss. Jan. 10, 1995) and Feola (US
5,762,340, iss. June 9, 1998).
Claims 2—6, 12—33, 35, 37, and 39 are rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Jones, Feola, and Merlino (US
5,657,993, iss. Aug. 19, 1997).
2 The Examiner withdrew provisional double patenting rejections of claims
1—39 over claims of copending applications 13/455,742, 13/549,969, and
14/082,835 in response to the terminal disclaimers that were filed by
Appellant. Ans. 3.
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Application 13/631,816
ANALYSIS
Claims 1—33, 35, 37, and 39
As Patent Ineligible Subject Matter
Appellant argues claims 1—33, 35,37, and 39 as a group. Appeal Br.
30-74. We select claim 1 as representative, and claims 2—33, 35, 37, and 39
stand or fall with claim 1. 37 C.F.R. § 41.37(c)(l)(iv).
To determine patent-eligibility, we perform a two-step analysis. First,
we determine if the claims are directed to a patent-ineligible concept like an
abstract idea. Alice Corp. Pty. Ltd. v. CLS Bank Inti, 134 S. Ct. 2347, 2355
(2014). If so, we determine if the claims contain an “inventive concept” that
transforms the abstract idea into a patent-eligible application. Id. at 2357.
Alice Step One: Are the Claims Directed to an Abstract Idea?
The Examiner determines that claim 1 is directed to an abstract idea of
dealing cards from a deck and playing card games according to a predefined
set of rules where wagering may occur. Final Act. 4—5. The Examiner finds
that Appellant claims a new set of rules for playing a card game and actions
a player may take including wagering. Id. at 5, 6, 11. The Examiner finds
the set of rules for playing is an abstract idea. Id. at 6; Ans. 12 (citing In re
Smith, 815 F.3d 816 (Fed. Cir. 2016)). The Examiner determines the set of
game rules also is directed to other patent ineligible subject matter such as
(a) the mental activity of forming a judgment, observation, evaluation, or
opinion, (b) interpersonal interactions between players, (c) human behavior
of following game rules, and (d) instructions for how business should be
conducted. Final Act. 6, 9—10. The Examiner determines that the computer
implementation and card sensors can be performed by human senses and
decisions and thus do not render this subject matter eligible. Id. at 6.
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Application 13/631,816
We agree with the Examiner that the Federal Circuit’s holding in In re
Smith, 815 F.3d 816 (Fed. Cir. 2016) is controlling and determinative of the
issue in this appeal. Ans. 12. In re Smith examined the patent eligibility of
claims to a “method of conducting a wagering game” with a deck of playing
cards that the dealer deals according to game rules while accepting and
resolving wagers of players. Smith, 815 F.3d at 817—18.
Fike the claim in Smith, claim 1 recites a “method of playing a
wagering game” according to game rules that involve receiving an ante
wager from a player, dealing at least one player card, dealer card, and
community card, receiving a user play election, which may be a check (no
wager) or a first play wager, revealing a player and community card, and
receiving a subsequent play election, which may be a fold or a second play
wager against the dealer hand, and then resolving all received wagers.
Appeal Br. (Claims App. 1—2); Final Act. 13; Ans. 12—13.
In re Smith, which is a precedential decision, held that claims directed
to rules for conducting a wagering game are comparable to the fundamental
economic practices that the Supreme Court held to be abstract ideas in Alice
of a method of exchanging financial obligations and Bilski v. Kappos, 561
U.S. 593, 611 (2010) of a method of hedging risk. Smith, 815 F.3d at 818—
19. Fike the claim in Smith, claim 1 allows players and dealers to exchange
financial obligations and hedge risk by placing wagers in various amounts,
checking (placing no wager), and relying on community cards. The recital
of a “method” does not make claim 1 patent eligible. Final Act. 6 (citing
CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d 1366, 1374 (Fed. Cir.
2011) (regardless of the statutory category a claim invokes, the underlying
invention is considered for patent-eligibility)); Appeal Br. 36—37.
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Appellant’s arguments that the Examiner has not provided sufficient
articulation of specific claim limitations or the set of rules for playing a card
game and thus has oversimplified the claims and downplayed the invention’s
benefits and character (Appeal Br. 37-44) is not persuasive in view of the
Examiner’s findings and determinations set forth in the Final Office Action
and Answer and as summarized above. The Examiner’s determinations and
findings place Appellant sufficiently on notice of the basis of the rejection
and are comparable to those in other cases. See Smith, 815 F.3d at 818—819;
Planet Bingo, LLCv. VKGSLLC, 576 F. App’x 1005, 1007-08 (Fed. Cir.
2004) (claims directed abstract idea of “methods and systems for ‘managing
a game of Bingo’”) (non-precedential). Claim 1 recites rules for a wagering
game. The individual limitations recite wagering and game play steps.
The Specification discloses the “present invention relates to wagering
games, casino table wagering games, casino table playing card wagering
games, computer-implemented wagering games, and variants of casino table
wagering games that use poker ranks in determining outcomes.” Spec. 12.
In particular, the claims are directed to a “new variant game of Hold ‘Em
poker” that “allows for rules of play of one or all of players being allowed to
remain in the game with an option of checking or making specific wagering
amounts in first play wagers.” Id. 14.
As the Examiner correctly determines, claim 1 is directed to rules for
playing and managing a card game for wagering. Claim 1 recites game play
rules discussed above of receiving wagers from a player (ante, first play
wager, second play wager), receiving player options (check, fold, or place
first and second play wagers), dealing player, dealer, and community cards,
and resolving wagers. Final Act. 4—6; Ans. 12—14; see Appeal Br. 49.
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Appellant’s arguments belie the fact that Appellant is on notice of the
bases of the rejection. Appeal Br. 55 (“the Examiner essentially categorized
the entirety of the present claims as constituting the abstract idea of ‘a set of
rules for playing a card game’”). Appellant’s argument that claim 1 recites
an ordered combination of steps that are not fundamental practices, building
blocks, or basic tools of the gaming industry {id. at 55—57) is, likewise, not
persuasive as Appellant admits that claim 1 relates to rules for playing a
game and wagering, albeit in a particular, ordered combination {id. at 56).
See Final Act. 13. Smith held that such game play rules are an abstract idea.
Even if claim 1 recites a new or nonobvious combination of rules for
playing a game and wagering, as Appellant asserts is the case, the claim is
directed to rules for a wagering game, which In re Smith held to be akin to
fundamental economic practices considered abstract by the Supreme Court.
Smith, 815 F.3d at 818. Appellant’s arguments show that claim 1 is directed
to rules for conducting a wagering game. See Appeal Br. 55—56 (reciting
claimed steps of play options of placing first and second play wagers or a
check at prescribed multiples of the ante wager as part of the claimed play
election events), 62 (same). Claim 1 recites three wagers and provides a
player with the ability to check (i.e., place no first play wager). Thus, claim
1 recites wagering rules for a card game that involves a dealer dealing cards
and a player making wagering choices and exercising various player
elections. We are not persuaded that the claimed rules for wagering and
game play are distinguishable from the rules for a wagering game in Smith,
which mles were held to be a patent-ineligible abstract idea. See Appeal Br.
45; see also Two-Way Media Ltd. v. Comcast Cable Comm ’ns, LLC, 874
F.3d 1329, 1339-40 (“Eligibility and novelty are separate inquiries.”).
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Application 13/631,816
We also agree with the Examiner that claim 1 is directed to an abstract
idea of “organizing human activity” and managing a game (Final Act. 5) like
the method of managing a bingo game in Planet Bingo. Planet Bingo, 576
F. App’x at 1007-08. The claims in Planet Bingo recited “steps of selecting,
storing, and retrieving two sets of numbers, assigning a player identifier and
a control number, and then comparing a winning set of bingo numbers with
a selected set of bingo numbers.” Id. Claims directed to managing a game
of Bingo are similar to “organizing human activity” held to be an abstract
idea in Alice. Id. at 1008. See Appeal Br. 48 (game is unconventional).
Here, claim 1 recites a method of playing a wagering game that serves
to organize the activities of a dealer (automated) and player similar to the
game managed in Planet Bingo. Appellant’s argument that Planet Bingo
treated a method of managing a game of bingo as mental steps (Appeal Br.
47-48) is not persuasive in view of the court’s holding that the method was
directed to the abstract idea of organizing human activity. Planet Bingo, 576
F. App’x at 1008; Final Act. 9. Claim 1 ’s game rules involve mental steps
and probabilities that can be performed in the human mind. CyberSource,
654 F.3d at 1371—72; Appeal Br. 47 (claims are not solely mental steps).
Appellant’s attempts to distance the subject matter of claim 1 from the
general characterizations set forth in Alice are unavailing, given the decision
in Smith, which is precedent very closely on point to the present situation.
As noted above, in Smith, the court determined that “rules for conducting a
wagering game, compare to other ‘fundamental economic practice^]"1 found
abstract by the Supreme Court.” See Smith, 815 F.3d at 818 (emphasis
added). We find Smith to be binding on the facts and issues in this appeal, in
terms of the claimed subject matter being directed to an abstract idea.
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Contrary to Appellant’s arguments (Appeal Br. 11—16), recent Federal
Circuit decisions support the Examiner. In Enfish, the claims were directed
to improvements in computer database technologies through the use of self-
referential tables that differed from conventional database structures and
provided increased flexibility, faster search times, and less memory needs.
Enfish, LLCv. Microsoft Corp., 822 F.3d 1327, 1336—37 (Fed. Cir. 2016).
Similarly, in DDR Holdings, the claims were necessarily rooted in
computer technology in order to overcome a problem specifically arising in
the realm of computer networks” and, thus, did not merely recite an abstract
idea. DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245, 1257 (Fed.
Cir. 2014). The claims addressed the problem of retaining website visitors
who would be transported away from a host’s website after clicking on an
advertisement by activating a hyperlink that sends them to an outsource
provider’s hybrid web page with the look and feel of the host website and
product information from a third party merchant’s website without actually
taking the visitor to the third-party merchant’s website. Id. at 1257—58.
In McRO, the claims improved computer animations through accurate,
realistic lip synchronization and facial expressions. McRO, Inc. v. Bandai
Namco Games Am. Inc., 837 F.3d 1299, 1313 (Fed. Cir. 2016).
Here, Appellant asserts the claimed method is unconventional because
it recites an ordered combination of game play that is unconventional, not
because it is directed to improvements in technology for gaming, computers,
or networks.3 Appeal Br. 45 49, 63—64. In other words, it recites known
abstract wagering game rules in an alleged different order than is known.
3 Appellant’s alleged computer improvements (Spec. 78—82) are not
recited in the claims.
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Alice Step Two: Do the Claims Contain an “Inventive Concent”?
The Examiner determines that the claimed steps of displaying and
resolving wagers amounts to nothing significantly more than instructions to
a processor to apply the abstract idea of following the rules of a wagering
game. Final Act. 13. The Examiner also finds that nothing of record
indicates that the claimed rules individually or as an ordered combination
solve any known problem in the art or improve upon any of the multitude of
other variations of poker that are known. Id. at 11.
Appellants argue that claim 1 recites significantly more than a mere
abstract idea and provides an inventive concept that transforms any abstract
idea into a patent-eligible invention. Appeal Br. 61. Appellant argues that
the inventive concept is displaying by a user interaction server on a display
of a user device first options for the player of a check or a first play wager
against a dealer, second options of a fold or a second play wager against a
dealer hand with various wager rules and options. Id. at 62. Appellant also
argues that the claimed game rules are unconventional and are significant to
the solution provided in the recited methods. Id. at 63—65.
If a patent claim recites a computerized method with mere instructions
to implement an abstract idea on the computer, the computer cannot impart
patent eligibility. Alice, 134 S. Ct. at 2358; Planet Bingo, 576 F. App’x at
1008. Claim 1 does not recite innovative computer architecture or software
to implement the wagering game rules. Claim 1 recites rules of a wagering
game intended to entice players to play the game. Spec. 13. Appellant
discloses that gaming actions and rules include accepting wagers, making
payouts, dealing cards, selecting cards, and other actions associated with a
player or a dealer to include physical and electronic embodiments. Id. 1 84.
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Claim 1 is directed to the abstract idea of rules for a wagering game,
rather than specialized computer game play. See Elec. Power Grp., LLC v.
Alstom S.A., 830 F.3d 1350, 1355 (Fed. Cir. 2016) (claims do not require
inventive types of information, components, methods, or programming; they
merely select information for collection, analysis, and display, similar to
ordinary mental processes); Mortg. Grader, Inc. v. First Choice Loan Servs.
Inc., 811 F.3d 1314, 1324—25 (Fed. Cir. 2016) (claims reciting generic
computer components such as an “interface,” “network,” and “database” do
not add an “inventive concept” to an otherwise abstract idea); Internet
Patents Corp. v. Active Network, Inc., 790 F.3d 1343, 1346, 1348-49 (Fed.
Cir. 2015) (claims directed to generalized steps to be performed on a
computer using conventional computer activity are not patent eligible).
As the Federal Circuit made clear in Two-Way Media Ltd. v. Comcast
Cable Communications, the improvement must be a technical one. See Two-
Way Media Ltd. v. Comcast Cable Comm., LLC, 874 F.3d 1329, 1338—39
(Fed. Cir. 2017) (reciting an abstract idea performed on generic computer
and network components that operate according to their ordinary functions
does not contain an inventive concept). Although the specification described
an innovative system architecture with protocols and signal selections, the
claims did not recite the innovations. Id.
Here, the alleged innovative concept is a new combination of rules for
wagering on a card game as implemented in a conventional computer. The
new rules cover “action on a live gaming table, a virtual table or display, and
the generation, transmission, and reception of such an action in an electronic
form where player and dealer choices, selections, or other actions are
received at an electronic interface.” Spec. 1 84.
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Claim 1 does not recite a technological innovation in computers or in
any other technological field. Alice, 134 S. Ct. at 2359. Instead, Appellant
argues that the claims recite a combination of features that is unconventional
in the gaming industry. See Appeal Br. 61—66. Thus, claim 1 is directed to
an alleged new ordered combination of conventional rules (wagers, a check,
a fold, display of player options) for conducting a wagering game. Even if
claim 1 recites a new combination of rules for a wagering, nonetheless, it is
directed to rules for a wagering game, which is an abstract idea under Smith.
Claim 1 does not recite a technical improvement tied to a specific
apparatus that solves a technical problem in the gaming arts. See Two- Way
Media, 874 F.3d at 1338—39. Instead, it allows a player to remain in a game
with an option of checking or making wagers (Spec, 4, 22—37, Figs. 11—
13) via an automated computer implementation. The Declaration under 37
C.F.R. § 1.132 submitted by the inventor in a co-pending application
(Appeal Br. 65) merely recounts changes to the game rules that make the
game more interesting. Snow Deck 4—8. The declaration also pertains to
another claimed method. The steps of claim 1 involve purely conventional
activities — wagering, checking, dealing cards, displaying community/other
cards, and play elections. Smith, 815 F.3d at 819. They do not improve
existing technology in the gaming arts, however. Cf. Appeal Br. 65.
In Bascom Global Internet Services, Inc. v. AT&T Mobility LLC, 827
F.3d 1341 (Fed. Cir. 2016), an inventive concept existed because a claimed
Internet filtering improved an existing technological process. Bascom, 827
F.3d at 1350—51. In DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245
(Fed. Cir. 2014), the claims recited an unconventional use of the Internet to
create a composite website. DDR, 773 F.3d at 1258—59.
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As Appellants point out (Appeal Br. 67—69), the court in Smith stated
that a game using a new or original deck of cards might survive step two of
Alice. Smith, 815 F.3d at 819. However, claim 1 does not recite a new or an
original deck of cards. Claim 1 recites a user interaction server and user
device that allow cards to be dealt and wagers to be made. Appeal Br. 67—
68. The claimed devices automate the rules of the card game using generic
computers to perform conventional activities of sending data for wagering.4
See Intellectual Ventures ILLC v. Capital One Bank (USA), 792 F.3d 1363,
1370 (Fed. Cir. 2015) (“[Mjerely adding computer functionality to increase
the speed or efficiency of the process does not confer patent eligibility on an
otherwise abstract idea.”).
In Enfish, our reviewing court instructs us that “[s] oft ware can make
non-abstract improvements to computer technology just as hardware
improvements can, and sometimes the improvements can be accomplished
through either route.” Enfish, 822 F.3d at 1335. Thus, Enfish generally
stands for the proposition that software may be patent-eligible subject matter
if it improves a computer’s functionality. Here, the limitations at issue are
not directed to an improvement to a computer’s functionality. The alleged
improvements identified by Appellant are additional rules of a card game,
held to be abstract ideas in Smith. As the Federal Circuit has made clear,
Our prior cases have made clear that mere automation of
manual processes using generic computers does not constitute a
patentable improvement in computer technology. In those
cases, “the focus of the claims is not on such an improvement in
computers as tools, but on certain independently abstract ideas
that use computers as tools.”
4 Spec. H78—82 (known systems).
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Credit Acceptance Corp. v. Westlake Svcs., 859 F.3d 1044, 1055 (Fed. Cir.
2017) (quoting Elec. Power Grp., 830 F.3d at 1354).
Features specific to the dealing rules, wagering rules, player elections,
and payout rules either implement the abstract idea5 or are mere insignificant
pre-solution activity or insignificant post-solution activity. See Parker v.
Flook, 437 U.S. 584, 590 (1978) (“The notion that post-solution activity, no
matter how conventional or obvious in itself, can transform an unpatentable
principle into a patentable process exalts form over substance.”); cf Mayo,
132 S. Ct. at 1298 (“Purely ‘conventional or obvious’ ‘[pre]-solution
activity’ is normally not sufficient to transform an unpatentable law of
nature into a patent-eligible application of such a law.” (alteration in
original) (quoting Parker, 437 U.S. at 590)). Like the Flook claims, claim 1
does not recite either unconventional physical elements or an unconventional
relationship between the abstract idea and the physical elements.
Appellant’s argument that the recited dealing rules, wagering rules,
player elections, and payout rules are novel/nonobvious and unconventional,
is unavailing. Even assuming that claim 1 is “a novel and nonobvious
modification,” as the Supreme Court has stated, “[t]he ‘novelty’ of any
element or steps in a process, or even of the process itself, is of no relevance
in determining whether the subject matter of a claim falls within the § 101
categories of possibly patentable subject matter.” Diamond v. Diehr, 450
U.S. 175, 188—89 (1981); Versata Develop. Grp. v. SAP Am., 793 F.3d 1306,
1335 (Fed. Cir. 2015) (claims improved abstract idea not computer
performance). Thus, we are not apprised of error based on this argument.
5 The Examiner considers that the game instructions and display steps are
extra solution activity to show game indicia. See Ans. 22.
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Appellant’s argument that claim 1 does not monopolize the rules for
playing a card game (Appeal Br. 70-73) is resolved by the § 101 analysis.
Ariosa Diagnostics, Inc. v. Sequenom, Inc., 788 F.3d 1371, 1379 (Fed. Cir.
2015); see also Smart Sys. Innovations, LLC v. Chicago Transit Auth., 873
F.3d 1364, 1375 (Fed. Cir. 2017) (same).
Thus, we sustain the rejection of claims 1—33, 35, 37, and 39.
Claims 1—33, 35, 37, and 39
Rejected Over Jones, Feola, and Merlino
Because claims 1—33, 35, 37, and 39 are directed to patent-ineligible
subject matter, we do not reach the prior art rejection of those claims. See In
re Comiskey, 554 F.3d 967, 973 (Fed. Cir. 2009) (declining to reach the
prior art rejection when claims are barred at the threshold by § 101); Ax
parte Gutta, 93 USPQ2d 1025, 1036 (BPAI 2009) (precedential) (same).
DECISION
We affirm the rejection of claims 1—33, 35, 37, and 39 under
35U.S.C. § 101.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED
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