David Colvin et al.

Patent Trials and Appeals Board

Aug 2, 2019

13788065 - (D) (P.T.A.B. Aug. 2, 2019)

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.
13/788,065 03/07/2013 David Colvin GAMA92PUSP6 8097
144762 7590 08/02/2019
BROOKS KUSHMAN P.C./Gaming Arts, Z4 Poker
1000 TOWN CENTER
TWENTY-SECOND FLOOR
SOUTHFIELD, MI 48075
EXAMINER
SKAARUP, JASON M
ART UNIT PAPER NUMBER
3715
NOTIFICATION DATE DELIVERY MODE
08/02/2019 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):
docketing@brookskushman.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte DAVID COLVIN and ERIC D. COLVIN
____________

Appeal 2019-001231
Application 13/788,065
Technology Center 3700
____________

Before JENNIFER D. BAHR, EDWARD A. BROWN, and
WILLIAM A. CAPP, 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 1–26 under 35 U.S.C. § 101 as directed to patent-
ineligible subject matter. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 Gaming Arts, LLC (“Appellant”) is the Applicant and also identified as the
real party in interest. 37 C.F.R. § 1.46; Br. 1.
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CLAIMED SUBJECT MATTER
Claims 1 and 14 are independent claims. Claim 1 illustrates the
claimed subject matter:
1. An electronic gaming machine comprising:
a memory device configured to store instructions that are
executable by a processor to provide a game of chance in which
a plurality of house indicia is selected from a pool of house
indicia;
an input device configured to receive a physical item
associated with a monetary value;
a user interface configured to:
enable the player to select one or more wagers for
the game of chance; and
enable the player to initiate a cash out operation; and
a processor coupled to said memory device for executing
the instructions, wherein, when said processor executes the
instructions, said processor is programmed to:
add the monetary value to a credit balance for the
player;
deduct the selected wager from the credit balance;
provide a first bingo pattern to be matched upon a
determination that a player entered a first wager;
provide at least one second bingo pattern to be
matched upon a determination that the player entered a second
wager;
randomly select a plurality of house indicia from the
pool of house indicia;
determine whether the first bingo pattern is matched
by determining whether each player indicia within the first bingo
pattern is matched by one of the selected plurality of house
indicia;
determine whether the at least one second bingo
pattern is matched by determining whether each player indicia
within the at least one second bingo pattern is matched by at least
one of the selected plurality of house indicia;
determine that the player wins a first prize upon the
determination that the first bingo pattern is matched;
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determine that the player wins at least a second prize
upon the determination that the at least one second bingo pattern
is matched; and
decrease the credit balance in response to the cash
out operation.

Appeal Br. (Claims App. 1).

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 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 U.S. 584, 594–95
(1978)); and mental processes (Gottschalk v. Benson, 409 U.S. 63, 69
(1972)).
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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 “2019 Guidance”). The 2019
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
of the guidance. At this step, we determine whether the claim adds a
specific limitation beyond the judicial exception that is not “well-
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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 1–26 together (Br. 3–13), and also presents
argument for claims 1–13 together (id. at 13–14) and for claims 14–26
together (id. at 14–15) in contesting the rejection under 35 U.S.C. § 101.
We select claims 1 and 14 as the representative claims to decide the appeal
of this rejection. See 37 C.F.R. § 41.37(c)(1)(iv). Claims 2–13 stand or fall
with claim 1 and claims 15–26 stand or fall with claim 14.

Step 2A, Prong One – Recitation of Judicial Exception
The Examiner determines that claims 1–26 recite an abstract idea;
namely, rules for “managing or conducting a game.” Final Act. 6–7. The
Examiner determines that managing or conducting a game, as claimed, is
similar to the kind of “organizing human activity” and “fundamental
economic practice” at issue in Alice. Id. at 7. The Examiner also determines
that the abstract idea of managing a game is similar to the abstract ideas of:
managing risk (hedging) during consumer transactions (Bilski); mitigating
settlement risk in financial transactions (Alice); managing a game of bingo
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(Planet Bingo2); and rules for conducting a wagering game (In re Smith3).
Id.
Claim 1
We agree with the Examiner that claim 1 recites an abstract idea. In
fact, claim 1 recites several. Claim 1 is directed to an electronic gaming
machine comprising “a memory device,” “an input device,” “a user
interface,” and “a processor” “configured to” or “programmed to” execute
instructions to provide a game of chance. Br. (Claims App. 1). With the
claimed user interface, “the player . . . select[s] one or more wagers for the
game of chance . . . and . . . initiate[s] a cash out operation.” Id. (Claims
App. 1). These limitations pertaining to the input device and user interface
involve player actions in playing the game of chance, which, as claimed, is a
wagering game. Conducting and managing wagering games relates to
following rules or instructions, which is an example of managing personal
behavior or relationships or interactions between people. This example is
one of certain methods of organizing human activity identified in the 2019
Guidance. See 2019 Guidance at 52 n.13.
Claim 1 further recites that the “processor executes the instructions.”
Appeal Br. (Claims App. 1). The instructions include, inter alia, “add the
monetary value to a credit balance for the player,” “deduct the selected
wager from the credit balance,” and “decrease the credit balance in response
to the cash out operation.” Id. (emphasis added). Under their broadest
reasonable interpretation, these limitations each involve performing a
mathematical calculation using simple addition or subtraction to change or

2 Planet Bingo, LLC v. VKGS LLC, 576 F. App’x 1005 (Fed. Cir. 2014).
3 In re Smith, 815 F.3d 816 (Fed. Cir. 2016).
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determine the player’s current credit balance. According to the 2019
Guidance, mathematical relationships, mathematical formulas or equations,
and mathematical calculations are mathematical concepts, which is one of
the groupings of abstract ideas. See 2019 Guidance at 52 n.12.
The recited instructions also include “provide a first bingo pattern to
be matched upon a determination that a player entered a first wager,”
“provide at least one second bingo pattern to be matched upon a
determination that the player entered a second wager,” and “randomly select
a plurality of house indicia from the pool of house indicia.” Br. (Claims
App. 1) (emphasis added). The instructions further include “[(i)] determine
whether the first bingo pattern is matched by determining whether each
player indicia within the first bingo pattern is matched by one of the selected
plurality of house indicia,” “[ii] determine whether the at least one second
bingo pattern is matched by determining whether each player indicia within
the at least one second bingo pattern is matched by at least one of the
selected plurality of house indicia,” “[iii] determine that the player wins a
first prize upon the determination that the first bingo pattern is matched,”
and “[iv] determine that the player wins at least a second prize upon the
determination that the at least one second bingo pattern is matched.” Id.
(Claims App. 1) (emphasis added). The “provide,” “randomly select,” and
“determine” limitations (i)-(iv) involve conducting and managing a
wagering game by following rules or instructions, which, as noted, is an
example of managing personal behavior or relationships or interactions
between people, and one of certain methods of organizing human activity
identified in the 2019 Guidance. See 2019 Guidance at 52 n.13.
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The “determine” limitations (i) and (ii) involve comparing the first
and second bingo patterns to the randomly-selected house indicia to
determine whether there is matching. Under their broadest reasonable
interpretation, these limitations firstly involve concepts performed in the
human mind including observation, evaluation, judgment, and opinion,
which are mental processes. These limitations secondly involve
mathematical concepts; namely, using mathematical relationships in
determining whether there is matching (correspondence) between each
player indicia within the first and second bingo patterns and one of the house
indicia. As noted, mathematical relationships are a mathematical concept,
which is one of the groupings of abstract ideas. See 2019 Guidance at 52
n.12; see also SAP America, Inc. v. InvestPic, LLC, 898 F.3d 1161, 1163
(Fed. Cir. 2018) (holding that claims to a ‘‘series of mathematical
calculations based on selected information’’ are directed to abstract ideas).
The “determine” limitations (iii) and (iv) involve providing a first
prize and/or a second prize to the player when matching occurs in playing
the game of chance. These limitations involve conducting and managing a
wagering game by following rules or instructions, and thus fall within one of
certain methods of organizing human activity identified in the 2019
Guidance. See 2019 Guidance at 52 n. 13.
Appellant contends that “each of . . . [the] claims includes a number of
features or steps that are not mental steps, and cannot be carried out by a
human using pen and paper, or by a general-purpose computer.” Appeal Br.
11. However, Appellant fails to identify with specificity which particular
“features or steps” in claim 1 are not mental steps and cannot be carried out
by a human using pen and paper, or by a general-purpose computer. In that
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regard, the recitation of computer components does not, by itself, establish
that the claim does not recite mental steps. See, e.g., Versata Dev. Grp. v.
SAP Am., Inc., 793 F.3d 1306, 1335 (Fed. Cir. 2015) (‘‘Courts have
examined claims that required the use of a computer and still found that the
underlying, patent-ineligible invention could be performed via pen and paper
or in a person’s mind.’’). Also, “performance of a claim limitation using
generic computer components does not necessarily preclude the claim
limitation from being in the mathematical concepts grouping, Benson, 409
U.S. at 67, or the certain methods of organizing human activity grouping,
Alice, 573 U.S. at 219–20.” See 2019 Guidance at 52 n.14. Accordingly,
this contention is not persuasive.
Claim 14
We also agree with the Examiner that claim 14 recites an abstract
idea. In fact, claim 14, like claim 1, recites several abstract ideas. Claim 14
is directed to “a method of providing a game of chance in which a plurality
of house indicia is selected from a pool of house indicia.” Br. (Claims App.
3). The method of claim 14 comprises “receiving” steps, which are closely
similar to the limitations pertaining to the input device and user interface
recited in claim 1, and steps of “adding,” “deducting,” “providing,”
“randomly selecting,” determining,” “enabling,” and “decreasing,” which
are closely similar to the instructions recited in claim 1. Id.
The receiving steps in claim 14 involve wagering actions by the
player in playing the game of chance. These steps relate to following rules
or instructions, which is an example of managing personal behavior or
relationships or interactions between people, one of certain methods of
organizing human activity identified in the 2019 Guidance. See 2019
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Guidance at 52 n.13. Under their broadest reasonable interpretation, the
adding, deducting, and decreasing steps involve performing mathematical
calculations, a mathematical concept, which is one of the groupings of
abstract ideas. See 2019 Guidance at 52 n.12. And, under their broadest
reasonable interpretation, the providing, randomly selecting, and
determining steps involve both mental processes and mathematical concepts,
and thus, abstract ideas under the 2019 Guidance. See id. at 52 nn.12–13.
Because we conclude that each of claims 1 and 14 recites an abstract
idea, we proceed to Prong Two to determine whether these claims are
“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
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 2019 Guidance at 54.
Appellant contends that claims 1 and 14 are not directed to a
“fundamental economic practice” or “organizing human activity” as claimed
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in Alice, managing a game of bingo as claimed Planet Bingo, or conducting
a wagering game as claimed in Smith. Br. 4. Rather, Appellant contends,
claim 1 is directed to “an electronic gaming machine that includes hardware
specific to electronic gaming machines and not found on a general-purpose
computer,” and claim 14 is directed to “a statutory process or method for
providing a game of chance on a statutory electronic gaming machine, not a
general-purpose computer.” Id. Appellant contends that the claimed
electronic gaming machine “is a special purpose machine that includes
components such as an input device configured to receive a physical item
associated with a monetary value, such as currency or tickets, for example.”
Id. (emphasis added).
Appellant contends that its position is supported by the absence of any
claim rejection under 35 U.S.C. § 102 or § 103. Id. at 5. According to
Appellant, the claims “are directed to a new and non-obvious special-
purpose electronic gaming machine that includes components that are NOT
found on a general-purpose computer to implement a game that is NOT a
conventional process or game found in the prior art.” Id. Appellant
contends that, in contrast, Smith’s claimed method is directed to purely
conventional activity performed by a dealer. Id. at 6. Appellant asserts that
Smith states, “‘Abstract 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.’” Id. at 6–7.
Appellant contends that its claims contain such an inventive concept. Id. at
7. Appellant contends its “claims not merely directed to ‘rules for
conducting a wagering game’ and are not performed by a dealer as recited in
the rejected claims [in Smith].” Id. at 8–9. According to Appellant, “the
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gaming machine features not found on a general-purpose computer are
sufficient to transform the abstract idea into a patent-eligible machine and
process based on the Court’s decision in [Smith].” Id. at 9.
These contentions are not persuasive. Applying the 2019 Guidance,
the additional elements in claim 1 beyond the judicial exceptions identified
above are the “memory device configured to store instructions that are
executable by a processor to provide a game of chance in which a plurality
of house indicia is selected from a pool of house indicia”; an input device; a
user interface; and a processor coupled to the memory device. These
electronic elements are also recited in the method steps in claim 14.
Appellant asserts that “an electronic gaming machine having an input device
configured to receive a physical item associated with a monetary value” is
directed to a statutory machine. Appeal Br. 9. Appellant does not, however,
explain persuasively, or provide any evidence that shows, why the claimed
input device is a special purpose (or particular) element or machine. The
input device limitation is recited at a high level of generality, without any
specifics of how the input device receives the physical item of value or even
of the item itself. Thus, the limitation amounts to nothing more than a
generic and nonspecific means of accepting currency to be used for wagers
in the wagering game, that is, a drafting effort designed to monopolize the
exception.
Regarding the other electronic elements recited in claims 1 and 14,
paragraphs 87, 121, and 122, for example, of the Specification describe that
the memory device and processor are not limited. Appellant appears to
contend that the claimed processor does not perform a generic function, but
rather, “adds the monetary value of the physical item to a credit balance,
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deducts the wager from the credit balance, presents the game to the player,
and determines an outcome based on indicia randomly selected by the
machine.” Id. at 13. Appellant does not, however, explain persuasively, or
provide supporting evidence that shows, why these are more than generic
operations performed in an electronic gaming machine, such as a slot
machine. And, as described in the Specification at paragraph 125, for
example, the user interface likewise is not limited. Absent persuasive
evidence to the contrary, we determine that claims 1 and 14 merely use a
generic memory device, input device, user interface, and processor as tools
to perform the abstract idea(s). See MPEP § 2106.05(f).
Moreover, even if the memory device, input device, user interface,
and/or processor recited in claim 1 may be “novel,” which Appellant does
not establish with persuasive evidence, “[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.” See
Diamond v. Diehr, 450 U.S. 175, 188–189 (1981).
Regarding Planet Bingo, Appellant contends that each of the present
claims includes features that are significantly more than the generically
claimed computer with generic input and output terminals recited in the
rejected claims of Planet Bingo.” Br. 11. Appellant mentions “an input
device configured to receive a physical item associated with a monetary
value, [and] a user interface configured to enable a player to select a wager
for at least one of the plurality of games and to initiate a cash out operation,
and currency or tickets having a monetary value.” Id. For reasons discussed
above, however, Appellant does not establish that the recited input device or
user interface is a special purpose or particular element or machine.
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Appellant’s contentions do not persuade us that the claims provide an
improvement in the functioning of a computer, or an improvement to other
technology or technical field, making them patent-eligible. Appellant asserts
that “[t]he recitations of the instant claims solve a domain-specific problem
related to electronic gaming machines.” Id. at 12. Appellant does not,
however, identify the purported “domain-specific problem,” much less show
how the claimed subject matter purportedly solves it.
Appellant contends that the claims “do not attempt to preempt every
application of the alleged abstract idea,” which weighs in favor of patent
eligibility (id. at 11) and “[t]he recitations of the instant claims . . . do not
attempt to pre-empt every application of the alleged abstract idea of
managing a game . . . [and] the claims do not attempt to pre-empt every
system or method of playing bingo, or playing a conventional game of bingo
on a general-purpose computer” (id. at 12). Even if this contention is
correct, we note “preemption may signal patent ineligible subject matter,
[but] the absence of complete preemption does not demonstrate patent
eligibility.” Ariosa Diagnostics, Inc. v. Sequenom, Inc., 788 F.3d 1371,
1379 (Fed. Cir. 2015). Accordingly, this argument is unpersuasive.
In Smith, the court concluded that the claimed “method of conducting
a wagering game” was drawn to an abstract idea. Smith, 815 F.3d at 818
(“[a]pplicants’ claims, directed to rules for conducting a wagering game” are
abstract). The court likened the claimed method to the method of
exchanging financial obligations at issue in Alice. Id. at 819. Additionally,
the court found that the method of conducting a wagering game was similar
to the subject matter held to be patent-ineligible in Planet Bingo, 576 F.
App’x at 1007, in which the court determined that the claims recite methods
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for “managing a game of Bingo” “similar to the kind of ‘organizing human
activity’ at issue in Alice.” Id. And, in In re Guldenaar, 911 F.3d 1157,
1160 (Fed. Cir. 2018), the court concluded that the claimed “method of
playing a dice game” is directed to a method of conducting a wagering
game, which like the patent-ineligible claims in Smith is drawn to an abstract
idea. Claims 1 and 14 are, like the claims found to be patent-ineligible in
these decisions, directed to conducting a wagering game. Claim 1 involves
conducting and managing a game of chance played by a player using an
electronic gaming machine. The recited limitations involve the player
selecting wagers for the game of chance, managing the player’s credit
balance based on the selected wager and cash out operation, matching the
first and second bingo patterns provided by the player’s selected wagers, and
determining whether the player wins a first or second prize based on the
results of the matching. The limitations in claim 14 are similar to those
recited in claim 1. Claims 1 and 14 merely use generic components as a tool
to perform the abstract idea. See MPEP § 2106.05(f).
Thus, apart from the limitations reciting an abstract idea, claims 1 and
14 do not recite additional claim elements that integrate the judicial
exception into a practical application of the exception. We proceed to
determine whether these claims recite an “inventive concept.”

Step 2B – Inventive Concept
For Step 2B of the analysis, we determine whether the claim adds a
specific limitation beyond the judicial exception that is not “well-
understood, routine, conventional” in the field. See 2019 Guidance.
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The Examiner concludes that claim 1 does not include any additional
elements that are sufficient to amount to significantly more than the abstract
idea itself. Final Act. 7–8. We agree with the Examiner that the electronic
gaming machine recited in claim 1 and the method recited in claim 14
merely use generic components as a tool to perform the abstract ideas.
However, the application of an abstract idea using generic computer
components does not transform the claim into a patent-eligible application of
the abstract idea. Alice, 573 U.S. at 212. Appellant references paragraphs
128–130 of the Specification as providing support for the input device in
claim 1. Br. 1. We note that paragraph 130 describes that bill acceptor 404
receives paper currency, which is a physical item having a monetary value.
However, the Examiner cites evidence (i.e., Parker4, Cannon5, and Walker6)
showing that “an electronic gaming machine having a memory device, an
input device configured to receive a physical item associated with a
monetary value (e.g., acceptor), a user interface, and a processor to be
conventional hardware or conventional activity.” Ans. 10–12 (emphasis
added). For example, the passage in Cannon quoted by the Examiner states,
“[t]he input devices of the present invention include conventional input
devices such as . . . currency acceptors.” Id. at 11 (emphasis added). We
agree with the Examiner that these additional elements do not transform the
abstract idea into a patent-eligible application of the abstract idea. Final Act.
8.

4 US 5,016,879, issued May 21, 1991.
5 US 5,766,074, issued June 16, 1998.
6 US 2004/0147308 A1, published July 29, 2004.
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We thus sustain the rejection of claims 1 and 14 under 35 U.S.C.
§ 101. Claims 2–13 and 15–26 fall with claims 1 and 14, respectively.

DECISION
The rejection of claims 1–26 under 35 U.S.C. § 101 as directed to
patent-ineligible subject matter is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended according to 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED