Ex Parte LaRose

Board of Patent Appeals and Interferences

Jun 19, 2012

11321608 (B.P.A.I. Jun. 19, 2012)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
11/321,608 12/30/2005 Patrick I. LaRose 8384
7590 06/19/2012
Patrick I. LaRose
Apt 1
682 Holly Ave
St. Paul, MN 55104-7558
EXAMINER
COLLINS, DOLORES R
ART UNIT PAPER NUMBER
3711
MAIL DATE DELIVERY MODE
06/19/2012 PAPER
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.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte PATRICK I. LAROSE
____________________

Appeal 2010-008873
Application 11/321,608
Technology Center 3700
____________________

Before: MURRIEL E. CRAWFORD, JOSEPH A. FISCHETTI and,
MEREDITH C. PETRAVICK, Administrative Patent Judges.

FISCHETTI, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2010-008873
Application 11/321,608

2
STATEMENT OF THE CASE
Appellant seeks our review under 35 U.S.C. § 134 of the Examiner’s final
rejection of claims 1-20. We have jurisdiction under 35 U.S.C. § 6(b) (2002).

SUMMARY OF DECISION
We AFFIRM.

THE INVENTION
Appellants claim a game of poker played with a deck of playing cards.
(Specification 1: [0001]).
Claim 1, reproduced below, is representative of the subject matter on appeal.
1. A game of poker, comprising:
a first player;
a second player;
a collection of bets and/or antes;
a first set of playing cards dealt to the first player, wherein at least one
playing card of the first set of playing cards is dealt faced down and at
least one playing card of the first set of playing cards is dealt faced up;
a second set of playing cards dealt to the second player, wherein at
least one playing card of the second set of playing cards is dealt faced down
and at least one playing card of the second set of playing cards is dealt faced
up;
a plurality of community playing cards placed face up;
a comparison of a first five-card poker hand, corresponding to the first
player, to a second five-card poker hand, corresponding to the second player,
wherein the first poker hand is a combination of playing cards
contained in the first set of playing cards and playing cards contained
in the plurality of community playing cards, and
wherein the second poker hand is a combination of playing cards
contained in the second set of playing cards and playing cards contained in
the plurality of community playing cards; and
Appeal 2010-008873
Application 11/321,608

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wherein every card in the first set of playing cards is different from
every card in the second set of playing cards.

THE REJECTION
The Examiner relies upon the following as evidence of unpatentability:
Chobanian US 6,651,983 Nov. 25, 2003
The following rejection is before us for review.
The Examiner rejected claims 1-20 rejected under 35 U.S.C. 1 03(a) as being
unpatentable over Chobanian in view of applicant's Figure 2 labeled "Prior Art".
ISSUE
The issue of obviousness turns on whether a person with ordinary skill in the
art would see as obvious dealing an up card in the poker game disclosed by
Chobanian where the plurality of initial cards are otherwise dealt face down.

FINDINGS OF FACT
We find the following facts by a preponderance of the evidence:
1. We adopt the Examiner’s findings as set forth on pages 4-6 of the
Answer.
2. Shown below is Appellants’ Application Figure 2 showing admitted prior
art of a conventional five card Stud poker.
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Appeal 2010-008873
Application 11/321,608

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claims, they stand or fall with the representative independent claim. See In re
Young, 927 F.2d 588, 590 (Fed. Cir. 1991). See also 37 C.F.R. § 41.37(c)(1)(vii).
The Examiner maintains that:
It would have been obvious to modify Chobanian to deal
at least one card face up and at least one card face down
as taught by applicants admitted prior art to use known
means to obtain predictable results. The predictable result
would be using known gambling means in a combined
effort to have multiple games within one game.
(Answer 4).
In contrast, the Appellant argues that he disagrees “with the examiner's
assertion that it would have been obvious to combine Chobanian's game of shared-
card poker with selected elements of the Stud game to achieve the claimed
invention as proposed.” (Appeal Br. 6). In support, Appellants argue hindsight by
the Examiner in proposing the combination.
We agree with the Examiner. The Examiner states he “is not relying on
Chobanian to teach the limitation of one card face up and one card down but rather
is using applicants admitted prior art to teach that it is known in the art (see figure
2- labeled prior art).” (Answer 5). Here, what the Examiner is saying is that when
a person with ordinary skill in the art is presented with both prior art games
(Chobanian and the conventional five card Stud poker of Figure 2), the person with
ordinary skill in the art would know to combine the two games to result in the
game as claimed by Appellant.
“As precedent illustrates, many factors are relevant to the motivation-to-
combine aspect of the obviousness inquiry, such as the field of the specific
Appeal 2010-008873
Application 11/321,608

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invention, the subject matter of the references, the extent to which they are in the
same or related fields of technology, the nature of the advance made by the
applicant, and the maturity and congestion of the field. Objective indicia are also
relevant, see Graham v. John Deere Co., 383 U.S. 1, (1966), for the commercial
response to an invention is a useful control upon hindsight evaluation of
obviousness.” In re Johnston, 435 F.3d 1381 at 1384 (C.A.Fed. 2006).
Here, we find that the field of the invention is highly congested with many
aspects of different games being borrowed from each other. Appellant’s own brief
suggests the same; “I readily admit that my game of poker borrows various
elements from known types of poker.” (Appeal Br. 6). There is no question that at
issue here is a small permutation to a similar type of poker card game disclosed by
Chobanian, a fundamental difference only being the showing of one of the initially
dealt cards. But, this feature is admittedly taught by yet another prior art poker
game, shown in Figure 2 of Appellants’ Application (FF 2). Thus, the advance
from what is known is not significant. Finally, Appellant offers no evidence of
commercial response against the Examiner’s finding of obviousness.

CONCLUSIONS OF LAW
We conclude the Examiner did not err in rejecting claims 1-20 under 35
U.S.C. § 103(a).
Appeal 2010-008873
Application 11/321,608

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DECISION
The decision of the Examiner to reject claim 1-20 is AFFIRMED.

AFFIRMED

MP