Mara Enterprises Limited

Patent Trials and Appeals Board

Sep 21, 2021

2021002358 (P.T.A.B. Sep. 21, 2021)

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.
15/255,334 09/02/2016 Malcolm Colin Payne LGME-P0001-04-US 7506
27268 7590 09/21/2021
FAEGRE DRINKER BIDDLE & REATH LLP
300 NORTH MERIDIAN STREET
SUITE 2500
INDIANAPOLIS, IN 46204
EXAMINER
BUMGARNER, MELBA N
ART UNIT PAPER NUMBER
3711
NOTIFICATION DATE DELIVERY MODE
09/21/2021 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):
inteas@faegredrinker.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte MALCOLM COLIN PAYNE
____________

Appeal 2021-002358
Application 15/255,334
Technology Center 3700
____________

Before EDWARD A. BROWN, CHARLES N. GREENHUT, and
MICHAEL L. WOODS, Administrative Patent Judges.

BROWN, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant1 seeks review under 35 U.S.C. § 134(a) of the Examiner’s
decision rejecting claims 1, 2, and 7–21. We have jurisdiction under 35
U.S.C. § 6(b).
We AFFIRM.

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42. Appellant identifies Mara Enterprises Limited as the real
party in interest. Appeal Br. 3.
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CLAIMED SUBJECT MATTER
“The present disclosure relates generally to a method of
entertainment. The present disclosure relates more specifically to a card
game having a novel payout structure.” Spec. ¶ 2.
Claims 1, 10, and 15 are independent. Claim 1 illustrates the claimed
subject matter on appeal and is reproduced below with reference letters
added in brackets.
1. A method of playing a card game including the steps of:
[A] defining a set of qualifying card combinations;
[B] defining a payoff ratio for each of the qualifying card
combinations;
[C] accepting a wager of a first value;
[D] providing a dealer a set of cards;
[E] providing a player a set of cards;
[F] accepting an ante from the player;
[G] providing the player an additional card in return for
the ante;
[H] determining a dealer’s qualifying card combination of
greatest value is less than a player’s greatest qualifying
combination; and
[I] paying the player the amount given by multiplying the
first value by the payoff ratio associated with the player’s
greatest qualifying combination and paying the player an amount
given by multiplying the first value and the payoff ratio
associated with any second qualifying combination, when
present, in the player’s hand when the relative value of the
second qualifying combination is less than the dealer’s
qualifying combination.
Appeal Br. 10 (Claims App.).

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REJECTIONS
Claims 1, 2, and 7–21 are rejected under 35 U.S.C. § 101 as being
directed to patent-ineligible subject matter. Final Act. 2.
Claims 1, 2, and 7–21 are rejected on the ground of non-statutory
double patenting as being unpatentable over claims 1–7 of Payne (US
8,752,839 B2, issued June 17, 2014). Final Act. 7.

ANALYSIS
Patent-Ineligible Subject Matter
An invention is patent-eligible if it claims a “new and useful process,
machine, manufacture, or composition of matter.” 35 U.S.C. § 101.
However, the Supreme Court has long interpreted 35 U.S.C. § 101 to include
implicit exceptions: “[l]aws of nature, natural phenomena, and abstract
ideas” are not patentable. E.g., Alice Corp. v. CLS Bank Int’l, 573 U.S. 208,
216 (2014).
In determining whether a claim falls within an excluded category, we
are guided by the Supreme Court’s two-step framework, described in Mayo
and Alice. Id. at 217–18 (citing Mayo Collaborative Servs. v. Prometheus
Labs., Inc., 566 U.S. 66, 75–77 (2012)). In accordance with that framework,
we first determine what concept the claim is “directed to.” See Alice, 573
U.S. at 219.
Concepts that have been determined to be abstract ideas, and thus
patent-ineligible, include certain methods of organizing human activity, such
as fundamental economic practices (Alice, 573 U.S. at 219–20; Bilski v.
Kappos, 561 U.S. 593 (2010)); mathematical formulas (Parker v. Flook, 437
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U.S. 584, 594–95 (1978)); and mental processes (Gottschalk v. Benson, 409
U.S. 63, 69 (1972)).
If the claim is “directed to” an abstract idea, we turn to the second
step of the Alice and Mayo framework, where “we must examine the
elements of the claim to determine whether it contains an ‘inventive
concept’ sufficient to ‘transform’ the claimed abstract idea into a patent-
eligible application.” Alice, 573 U.S. at 221 (quotation marks omitted). “A
claim that recites an abstract idea must include ‘additional features’ to
ensure ‘that the [claim] is more than a drafting effort designed to
monopolize the [abstract idea].’” Id. (quoting Mayo, 566 U.S. at 77).
“[M]erely requir[ing] generic computer implementation[] fail[s] to transform
that abstract idea into a patent-eligible invention.” Id.
On January 7, 2019, the PTO issued revised guidance on the
application of § 101. See 2019 Revised Patent Subject Matter Eligibility
Guidance, 84 Fed. Reg. 50 (hereinafter “Guidance”). The Guidance
includes Steps 2A and 2B. Under Step 2A, Prong One, of the Guidance, we
first look to whether the claim recites any judicial exceptions, including
certain groupings of abstract ideas (i.e., mathematical concepts, certain
methods of organizing human activities such as a fundamental economic
practice, or mental processes). See id. at 54.
If a claim recites a judicial exception, we proceed to Step 2A, Prong
Two, and determine whether the claim recites additional elements that
integrate the judicial exception into a practical application. See id.; see also
MPEP § 2106.05(a)–(c), (e)–(h).
Only if a claim both recites a judicial exception and fails to integrate
the judicial exception into a practical application, do we proceed to Step 2B
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of the Guidance. At this step, we determine whether the claim adds a
specific limitation beyond the judicial exception that is not “well-
understood, routine, conventional” in the field (see MPEP § 2106.05(d)); or
simply appends well-understood, routine, conventional activities previously
known to the industry, specified at a high level of generality, to the judicial
exception. See 84 Fed. Reg. 56.
Claim Grouping
Appellant argues claims 1, 2, and 7–21 as a group under a single
heading. Appeal Br. 5–9. We select claim 1 as representative to decide the
appeal as to the ground of rejection, and claims 2 and 7–21 stand or fall with
claim 1. See 37 C.F.R. § 41.37(c)(1)(iv).2
Step One — Statutory Category
Claims 1, 2, and 7–21 are directed to a method of playing a card
game. Appeal Br. 10–13 (Claims App.). Accordingly, the claims are
directed to one of the statutory classes of subject matter eligible for
patenting under 35 U.S.C. § 101 (i.e., a process).

2 37 C.F.R. § 41.37(c)(1)(iv) states, “[w]hen multiple claims subject to the
same ground of rejection are argued as a group or subgroup by appellant,
the Board may select a single claim from the group or subgroup and may
decide the appeal as to the ground of rejection with respect to the group or
subgroup on the basis of the selected claim alone. Notwithstanding any
other provision of this paragraph, the failure of appellant to separately argue
claims which appellant has grouped together shall constitute a waiver of any
argument that the Board must consider the patentability of any grouped
claim separately. Under each heading identifying the ground of rejection
being contested, any claim(s) argued separately or as a subgroup shall be
argued under a separate subheading that identifies the claim(s) by number.”
(Emphasis added).
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Step 2A, Prong One — Recitation of Judicial Exception
The Examiner determines that claims 1, 2, and 7–21 recite an abstract
idea. Final Act. 3–4. More specifically, the Examiner determines that the
claims recite the following method steps:
“defining a set of qualifying card combinations and a
payoff [ratio] for each qualifying card combination[], accepting
[a] wager, dealing cards to [a] dealer and [a] player, determining
if the dealer has qualifying card combination, determining if the
player/dealer has qualifying card combination, dealer/player
exchanging cards, comparing the greatest qualifying card
combinations of dealer and player . . . , [and] paying a restricted
number of two qualifying combinations if the player is [the]
winner according to a payoff ratio.”
Id. at 3. The Examiner determines that these method steps are abstract rules
akin to activity that falls within two sub-groupings of the certain methods of
organizing human activity grouping of abstract ideas; namely, “fundamental
economic principles or practices such as hedging and mitigating risk,” and
“managing interaction[s] between people as in following rules or
instructions.” Id. The Examiner states that “these [method] steps can also
be treated as managing a game of bingo . . . or allowing players to
collect/exchange goods.” Id. (citing Planet Bingo, LLC v. VKGS LLC, 576
F. App’x 1005 (Fed. Cir. 2014)). The Examiner also determines that these
method steps are “effectively a method of exchanging and resolving
financial obligations based on rules of playing,” and thus, the method is akin
to the “method of exchanging financial obligations” at issue in Alice. Id. at
4.
In contrast, Appellant contends that claim 1 is not “directed to” a
judicial exception because it recites a specific payout structure based on
qualifying card combinations. Appeal Br. 6. According to Appellant, the
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Examiner fails to consider the features of steps H and I of claim 1. Id.
Appellant submits that these features incorporate no fundamental economic
principles, but instead “relate to comparing qualifying combinations of cards
and reciting a specific payout structure based on the qualifying
combinations.” Id. at 7. Appellant asserts, “reciting specific payout
structures based on different qualifying combinations is not abstract, but
rather concrete due to the specific payout structure being claimed.” Id.
Appellant’s contentions are unpersuasive. As explained in the
Guidance, in Prong One of Step 2A, “examiners should evaluate whether the
claim recites a judicial exception,” e.g., an abstract idea. See 84 Fed. Reg.
54 (emphasis added). If the claim is determined to recite a judicial
exception, it is then determined in Prong Two of Step 2A whether the claim
is “directed to” the recited exception. See id. In other words, the “directed
to” inquiry is part of the Prong Two, not Prong One, analysis.
Claim 1 recites a method of playing a card game that involves
wagering. Step A of the method recites “defining a set of qualifying card
combinations.” The Specification describes, “[a] playing combination, also
called a ‘qualifying hand’ is . . . defined as a hand having a minimum poker
combination of Ace-King.” Spec. ¶ 14. The Specification also describes
that “[f]ully developed combinations are any combination included in the
group of royal flush, straight flush, four of a kind, full house, flush, straight,
three of a kind, two pairs, one pair, and Ace-King.” Id. ¶ 25. Step B recites
“defining a payoff ratio for each of the qualifying card combinations.” The
Specification describes the payoff ratio for the fully developed combinations
of cards. Id. Steps A and B describe rules for playing the card game
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involving defining both qualifying card combinations and their associated
payoff ratios.
Step C recites “accepting a wager of a first value.” This step
describes another rule for playing the card game involving an act to be
performed by a player.
Step D recites “providing a dealer a set of cards” and step E recites
“providing a player a set of cards.” These steps describe additional rules for
playing the card game involving acts to be performed by the dealer (i.e.,
dealing cards to both a player and himself).
Step F recites “accepting an ante from the player” and step G recites
“providing the player an additional card in return for the ante.” These steps
describe additional rules for playing the card game involving acts to be
performed by the player and the dealer.
Step H recites “determining a dealer’s qualifying card combination of
greatest value is less than a player’s greatest qualifying combination.” This
step involves comparing (a) a dealer’s qualifying card combination of
greatest value to (b) a player’s qualifying combination of greatest value and
determining that the value of (a) is less than that of (b). This determination
is based on the payoff ratio for the qualifying card combinations defined in
step B. Step H describes another rule for playing the card game.
Lastly, step I recites:
paying the player the amount given by multiplying the first value
by the payoff ratio associated with the player’s greatest
qualifying combination and paying the player an amount given
by multiplying the first value and the payoff ratio associated with
any second qualifying combination, when present, in the player’s
hand when the relative value of the second qualifying
combination is less than the dealer’s qualifying combination.
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Step I involves paying the player an amount that is given by
multiplying the first value of the wager (step C) by the payoff ratio for the
player’s greatest qualifying combination (step B), and paying the player
another amount that is given by multiplying the first value of the wager by
the payoff ratio for any second qualifying combination, when present, when
the relative value of the second qualifying combination is less than the
dealer’s qualifying combination. Step I describes another rule for playing
the card game.
Accordingly, claim 1 recites a method of playing a card game by
following rules using sets of cards. According to the Guidance, this is an
example of “managing personal behavior or relationships or interactions
between people” (i.e., “following rules or instructions”) that falls within the
certain methods of organizing human activity grouping of abstract ideas.
See 84 Fed. Reg. 52 n. 13 (citing In re Smith, 815 F.3d 816, 818 (Fed. Cir.
2016)). In Smith (cited at Final Act. 5), the claimed subject matter was
directed to “[a] method of conducting a wagering game” using a deck of
playing cards. Id. at 817–18. The court concluded that the claims were
directed to rules for conducting a wagering game, and compared to the
method of exchanging financial obligations found to be drawn to an abstract
idea in Alice. Id. at 819. Additionally, the court found that the claimed
method of conducting a wagering game was similar to the concept
determined to be patent-ineligible in Planet Bingo, 576 F. App’x at 1008, in
which the court determined that the claims recite methods for “managing a
game of Bingo” “similar to the kind of ‘organizing human activity’ at issue
in Alice.” Id. The court concluded in Smith that the claims “describing a set
of rules for a game, are drawn to an abstract idea.” Id.
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Similarly, in In re Marco Guldenaar Holding B.V., 911 F.3d 1157,
1160 (Fed. Cir. 2018), the court determined that the claimed “method of
playing a dice game” was directed to a method of conducting a wagering
game having strong similarities to the ineligible claims in Smith. The court
in Guldenaar concluded that the claims were drawn to “the abstract idea of
‘rules for playing a dice game.’” Id. at 1160–61.
Claim 1 is closely similar to the claims found to recite abstract ideas
in Smith and Guldenaar in that claim 1 is directed to conducting a wagering
game by following a set of rules using cards. We agree that Smith supports
the Examiner’s determination that claim 1 recites the abstract idea of a set of
rules for playing a card game. Final Act. 5; See 84 Fed. Reg. 52; MPEP
§ 2106.04(a)(2)(II)(C). Guldenaar likewise supports the Examiner’s
position.3
We need not address the Examiner’s alternative determination that the
claim recites the additional abstract idea of “fundamental economic

3 At least steps A, B, and H of claim 1 recite acts that can be performed
through human observation, evaluation, or judgment in the human mind or
on paper. Concepts that can be performed in the human mind fall within the
mental processes grouping of abstract ideas. See 84 Fed. Reg. 52. Step I
involves performing at least one mathematical calculation to determine the
amount paid to the player. According to the Guidance, mathematical
calculations fall within the mathematical concepts grouping of abstract
ideas. See id. Thus, steps A, B, H, and I each recite a second judicial
exception. The Federal Circuit has determined that claims can recite more
than one judicial exception. See Genetic Techs. Ltd. v. Merial LLC, 818
F.3d 1369, 1374–75, 1378 (Fed. Cir. 2016) (Claim to a method for analyzing
DNA recited both a law of nature and a mental process.); Planet Bingo, 576
F. App’x at 1007–08 (Claims to methods and systems of managing a game
of bingo recited mental processes and methods of organizing human
activity.)
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principles or practices,” which falls within the “certain methods of
organizing human activity” grouping of abstract ideas, and Appellant’s
argument as to why claim 1 does not recite any “fundamental economic
principles.” Final Act. 2; Appeal Br. 7. We note, however, Appellant’s
assertion that “the contention these features are not fundamental in nature is
evident by the lack of prior art disclosures and, therefore, 35 U.S.C. §§ 102,
103 rejections related to these features.” Appeal Br. 7 (emphasis added).
We understand that “these features” pertain to steps H and I of claim 1. This
contention is unpersuasive because the patent eligibility analysis is not an
evaluation of novelty or non-obviousness. “[A] claim for a new abstract idea
is still an abstract idea.” Synopsys, Inc. v. Mentor Graphics, Corp., 839 F.3d
1138, 1151 (Fed. Cir. 2016). Even assuming that the claimed method may
be novel, “[t]he ‘novelty’ of . . . the . . . [claim] 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). A novel and non-obvious claim directed to a
purely abstract idea is, nonetheless, patent-ineligible. See Mayo, 566 U.S. at
90–91.
As we agree with the Examiner that claim 1 recites an abstract idea,
we proceed to Prong Two to determine whether the claim is “directed to” the
judicial exception.
Step 2A, Prong Two — Practical Application
We next determine whether the recited judicial exception is integrated
into a practical application of that exception by: (a) identifying whether
there are any additional elements recited in the claim beyond the judicial
exception(s); and (b) evaluating those additional elements individually and
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in combination to determine whether they integrate the exception into a
practical application. This evaluation requires an additional element or a
combination of additional elements in the claim to apply, rely on, or use the
judicial exception in a manner that imposes a meaningful limit on the
judicial exception, such that the claim is more than a drafting effort designed
to monopolize the exception. When the judicial exception is integrated into
a practical application of the exception, the claim is not “directed to” the
judicial exception. See 84 Fed. Reg. 54.
The Examiner finds that claim 1 recites the additional elements of “a
plurality of game cards.” Final Act. 4. The Examiner determines that these
additional elements do not integrate the judicial exception into a practical
application because: (1) the recited method steps “are mere instructions to
implement an abstract idea on a game surface using game cards as a tool to
perform [the] abstract idea” (citing MPEP § 2106.05(f)); (2) the recited
method steps generally link the use of the abstract idea to a particular
technological environment or field of use (i.e., the field of board games)
(citing MPEP § 2106.05(h)); and (3) “[t]here are no improvements suggested
in the functioning of game cards technology and there is no transformation
or reduction of a different state or thing in applying the exception.” Id.
In the Appeal Brief, Appellant does not address the Examiner’s stated
reasons (1)–(3). Thus, Appellant does not apprise us of error in the
Examiner’s determination that claim 1 fails to integrate the judicial
exception into a practical application. We accordingly proceed to Step 2B to
determine whether claim 1 recites an “inventive concept.”

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Step 2B — Inventive Concept
Step 2B involves determining whether the additional elements provide
“significantly more” than the judicial exception, i.e., an “inventive concept.”
See 84 Fed. Reg. 56. This evaluation determines whether the additional
element, or combination of elements, “[a]dds a specific limitation or
combination of limitations that are not well-understood, routine,
conventional activity in the field, which is indicative that an inventive
concept may be present,” or “simply appends well-understood, routine,
conventional activities previously known to the industry.” Id.
For Step 2B, the Examiner determines that the claims require a
plurality of cards (“additional elements”) as is common in the field of card
games. Final Act. 5. The Examiner states, “[t]he steps of [the] claimed
method, while arguably reciting a number of physical steps[,] are viewed
here as an attempt to claim a set of abstract ideas/rules for playing a card
game.” Id. The Examiner determines that the additional elements can be
categorized as well-understood, routine, and conventional, are generic, and
do not meaningfully limit the abstract idea such that the claim amounts to
significantly more than the abstract idea itself. Id.
In contrast, Appellant contends that the claims recite significantly
more than merely an abstract idea because they recite a practical application
including a combination of non-routine and unconventional features.
Appeal Br. 7. Appellant asserts that Bascom Glob. Internet Servs., Inc. v.
AT&T Mobility LLC, 827 F.3d 1341 (Fed. Cir. 2016), supports this
contention. Id. Appellant submits that the court in Bascom found that
although the claims were directed to the abstract idea of filtering content on
the Internet, the claims included significantly more than the abstract idea.
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Id. According to Appellant, the court reasoned that although each of the
individual claim elements were conventional and known in the art, the
combination of elements differed from the routine and conventional and,
therefore, did not preempt the use of the abstract idea of filtering content on
the Internet. Id. at 7–8 (citing Bascom, 827 F.3d at 1352). Appellant
contends that, similar to Bascom, claim 1 recites features that differ from the
routine and conventional, specifically, limitations H and I. Id. at 8.
Appellant asserts:
More specifically, for claim[] 1 . . . both the payoff ratio
associated with the player’s greatest qualifying combination and
the payoff ratio associated with any second qualifying
combination, when present, are paid out. Paying out a second
qualifying combination is neither routine nor conventional,
which is apparent by the lack of prior art disclosures.
Id. (emphasis added).
Appellant’s contentions are unpersuasive. As acknowledged in both
Smith and Guldenaar, “‘[a]bstract ideas, including a set of rules for a game,
may be patent-eligible if [they] contain an ‘inventive concept’ sufficient to
‘transform’ the claimed abstract idea into a patent-eligible application.’” See
Smith, 815 F.3d at 819; Guldenaar, 911 F.3d at 1161. However, claim 1
fails to meet this requirement. In BASCOM, the court determined that an
inventive concept may be found in the non-conventional and non-generic
arrangement of components that are individually well-known and
conventional. See BASCOM, 827 F.3d at 1350. The arrangement involved
the placement of a filtering element for filtering Internet content at a specific
location in a system. It is not apparent to us how claim 1, which recites a
card game using sets of cards, is similar to the claims at issue in BASCOM.
Thus, we are not persuaded that BASCOM supports Appellant’s position.
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Appellant relies on steps H and I as providing significantly more.
However, these steps recite an abstract idea and “[i]t has been clear since
Alice that a claimed invention’s use of the ineligible concept to which it is
directed cannot supply the inventive concept that renders the invention
‘significantly more’ than that ineligible concept.” BSG Tech LLC v.
BuySeasons, Inc., 899 F.3d 1281, 1290 (Fed. Cir. 2018).
Step I involves paying the player another amount that is given by
multiplying the first value of the wager by the payoff ratio for any second
qualifying combination, when present, and when the relative value of the
second qualifying combination is less than the dealer’s qualifying
combination. We construe paying out of “another amount” as a conditional
limitation, because it occurs if and only if: (1) a second qualifying
combination is present, and (2) the relative value of the second qualifying
combination is less than the dealer’s qualifying combination. In cases where
both conditions are not met, claim 1 requires only paying the player the
amount given by the above-discussed mathematical calculation. Even for
the case where both conditions are met, it is not apparent, and Appellant
does not explain, why “paying out a second qualifying combination”
amounts to unconventional activity, rather than merely involving
substantially repeating the same calculation. We are unpersuaded that “the
claims recite specific rules and a specific payout structure that have not been
previously disclosed.” Reply Br. 2. We agree with the Examiner that the
claimed method uses generic elements (playing cards) as a tool to perform
the abstract idea, which is insufficient to transform the claim into a patent-
eligible application of the abstract idea. Alice, 573 U.S. at 212.
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Thus, we sustain the rejection of claim 1 under 35 U.S.C. § 101.
Claims 2 and 7–21 fall with claim 1.

Non-Statutory Double Patenting
Appellant does not address the rejection of claims 1, 2, and 7–21 on
the ground of non-statutory double patenting over claims 1–7 of Payne.
Thus, we sustain this rejection.

CONCLUSION
We affirm the rejections of claims 1, 2, and 7–21.

DECISION SUMMARY
In summary:
Claim(s)
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 2, 7–21 Eligibility 1, 2, 7–21
1, 2, 7–21 101 Nonstatutory
Double Patenting
US 8,752,839

1, 2, 7–21
Overall
Outcome
1, 2, 7–21

TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).

AFFIRMED