11039467 (B.P.A.I. Apr. 7, 2010)

Ex Parte Moody

Board of Patent Appeals and InterferencesApr 7, 2010

11039467 (B.P.A.I. Apr. 7, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES ____________________ Ex parte ERNEST W. MOODY ____________________ Appeal 2009-007858 Application 11/039,467 Technology Center 3700 ____________________ Decided: April 7, 2010 ____________________ Before: WILLIAM F. PATE III, JENNIFER D. BAHR, and STEVEN D.A. MCCARTHY, Administrative Patent Judges. PATE III, Administrative Patent Judge. DECISION ON APPEAL Appeal 2009-007858 Application 11/039,467 STATEMENT OF CASE Appellant appeals under 35 U.S.C. § 134 (2002) from a rejection of claims 1-3. Br 2. We have jurisdiction under 35 U.S.C. § 6(b) (2008). The claims are directed to a combination of live table and video screen display games. Spec. 1, ll. 8-9. Claim 1, reproduced below, is illustrative of the claimed subject matter: Claim 1. The method of playing a casino game comprising: a) providing a gaming table having a plurality of player locations; b) providing each player location with a video screen display that is exclusive to the player and is used by the player to play a separate poker game; c) providing each player location with a button panel associated with the video screen display; d) dealing a live Twenty-One game in a conventional manner using actual playing cards; each player making his wagers using actual gaming tokens; e) allowing a player to play the poker game displayed on the video screen display contemporaneously with the play of the live table game; the player using the button panel exclusively to play the poker game. REFERENCES The prior art relied upon by the Examiner in rejecting the claims on appeal is: Yoseloff 6,227,969 B1 May 8, 2001 Cannon 2002/0183105 A1 Dec. 5, 2002 REJECTIONS Claims 1-3 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Yoseloff and Cannon. Ans. 3. Appeal 2009-007858 Application 11/039,467 3 ISSUES Appellant argues claims 1-3 as a group. Br. 4-6. We select claim 1 as the representative claim, and claims 2 and 3 will stand or fall with claim 1. See 37 C.F.R. § 41.37(c)(1)(vii) (2008). Regarding claim 1, Appellant and the Examiner agree that Yoseloff does not provide a poker game played on a video screen at each player location of a live gaming table wherein poker is played contemporaneously with a live Twenty-One game. Br. 5; Ans. 4. Appellant and the Examiner also agree that Cannon does not disclose a gaming table with a live Twenty- One game and a video screen display on the gaming table wherein a poker game is played contemporaneously with the live Twenty-One game. Br. 5; Ans. 5-6. The sole issue raised by Appellant is whether the Examiner erred by concluding that claim 1 would have been obvious to one having ordinary skill in the art based upon the combined teachings of Yoseloff and Cannon. FINDINGS OF FACT 1. Yoseloff discloses adding a side bet game to an underlying live table game or video gaming apparatus. Col. 5, ll. 49-50. 2. Yoseloff discloses that five card stud or draw poker is the preferred underlying or primary game. Col. 5, l. 66 – col. 6, l. 3. Yoseloff suggests a variety of games may comprise the underlying or primary game, including Twenty-One. Col. 5, ll. 66-67; col. 9, ll. 39-42. 3. Yoseloff discloses that a wager for the side bet game may be placed before, at the same time, or after resolution of the underlying game. Col. 8, ll. 1-3. Appeal 2009-007858 Application 11/039,467 4 4. Yoseloff discloses that resolution of the side bet game, involving matching cards, can take place any time during play of the underlying game, after the side wager has been placed. Col. 8, ll. 4-6; Fig. 2. 5. Yoseloff teaches that the image display device for the side bet game may be attached to, or embedded in a live casino game table. Col. 10, ll. 53- 64. Yoseloff further teaches placing monitors for the side bet game in each location of the gaming table 404, 406, 408, 410 and 412. Col. 13, ll. 49-59; Fig. 3. 6. Yoseloff fails to disclose that the side bet game may be poker. 7. Cannon teaches a video gaming system configured for playing mutually concurrent games of chance. P. 2, para. [0019]. 8. Cannon suggests that the simultaneous games played on the system may include poker and blackjack (“Twenty-One”). P. 5, para. [0045]. 9. Cannon suggests implementing the gaming system such that multiple competing players may have controls 176a, 176b and display portions 172a, 172b in close proximity in order to increase excitement. P. 17, paras. [0145] – [0147], [0151]; Fig. 6. ANALYSIS Applying Cannon’s known technique of contemporaneous poker and blackjack play (Facts 7, 8) to the known gaming system of Yoseloff (Facts 1-5) amounts to no more than the predictable use of prior art elements according to their established functions, and would have been obvious to one having ordinary skill in the art. See KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 417-418 (2007). As noted by the Examiner, nonobviousness cannot be established by attacking the references individually when the rejection is predicated upon a Appeal 2009-007858 Application 11/039,467 5 combination of prior art disclosures. See In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986). The test for obviousness is not whether the claimed invention is expressly suggested in any one or all of the references. Rather, the test is what the combined teachings of the references would have rendered obvious to those of ordinary skill in the art. In re Keller, 642 F.2d 413, 425 (CCPA 1981) (citations omitted). Appellant’s contention that, at most, the combination of Yoseloff and Cannon would result in a side bet game occurring after the Twenty-One game is based upon an inaccurate reading of Yoseloff. Br. 5-6. While one option suggested by Yoseloff is play and resolution of the side bet game after resolution of the underlying game, contemporaneous play is also suggested. Fact 4. Additionally, Cannon also expressly suggests the contemporaneous play feature and suggests implementation in a configuration similar to Yoseloff’s. Facts 7 and 9. The fact that the Examiner’s proposed combination of references may render unclaimed subject matter obvious, does not, without more, establish that the Examiner erred in concluding that the combination would have rendered the claimed subject matter obvious. CONCLUSION OF LAW The Examiner did not err in concluding that claim 1 would have been obvious to one having ordinary skill in the art based upon the combined teachings of Yoseloff and Cannon. DECISION For the above reasons, the Examiner’s rejection of claims 1-3 is affirmed. Appeal 2009-007858 Application 11/039,467 6 No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv) (2009). AFFIRMED nhl JOHN EDWARD ROETHEL 769 Basque Way #200 Carson City NV 89706