Wagering games are generally patent-ineligible abstract ideas unless they employ unconventional game elements, rather than conventional elements such as playing cards. Here, for example, a wagering game utilizing real or virtual standard playing cards was found to be nothing more than an abstract idea around the “purely conventional” activities of shuffling and dealing cards, although the court emphasized that not all inventions in the gaming arts would be foreclosed from patent protection under § 101. “That is not to say that all inventions in the gaming arts would be foreclosed from patent protection under § 101; … for example, claims directed to conducting a game using a new or original deck of cards [are envisaged as] potentially surviving step two of Alice.” It may therefore be best to focus new applications in the gaming arts around novel game elements rather than the manipulation of conventional game elements; this would also be a good case to consult and cite in response to a per se rejection of all inventions in the gaming arts being patent-ineligible under 35 U.S.C. § 101.
Background / Facts: The application on appeal here from rejection at the PTO is directed to a wagering game utilizing real or virtual but otherwise standard playing cards. The claims recite shuffling and dealing the cards in accordance with unconventional rules defining a new game.
Issue(s): Whether the claims cover more than simply the abstract idea of rules for playing a wagering game implemented using conventional activities.
Holding(s): No. Applying the “now-familiar two-step test introduced in Mayo [] and further explained in Alice,” the court first concluded that conducting a “wagering game” is “effectively, a method of exchanging and resolving financial obligations based on probabilities created during the distribution of the cards,” and is therefore comparable to “other ‘fundamental economic practice[s]’ found abstract by the Supreme Court.” Under step two, while the court recognized that “[t]he claims here require shuffling and dealing ‘physical playing cards,’” it ultimately concluded that “[j]ust as the recitation of computer implementation fell short in Alice, shuffling and dealing a standard deck of cards are ‘purely conventional’ activities.” However, although dicta, the court hypothesized that “[t]hat is not to say that all inventions in the gaming arts would be foreclosed from patent protection under § 101. We could envisage, for example, claims directed to conducting a game using a new or original deck of cards potentially surviving step two of Alice.”