Ex Parte Snow

Board of Patent Appeals and Interferences

May 25, 2012

11156352 (B.P.A.I. May. 25, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte ROGER M. SNOW
____________

Appeal 2010-003897
Application 11/156,352
Technology Center 3700
____________

Before LINDA E. HORNER, JOHN C. KERINS, and JAMES P. CALVE,
Administrative Patent Judges.

CALVE, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2010-003897
Application 11/156,352

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STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134 from the rejection of claims
1-11, 29, and 30 under 35 U.S.C. 103(a) as being unpatentable over Conklin
(US 2004/0100025 A1; pub. May 27, 2004) in view of what is old and well-
known in poker games. App. Br. 8. Claims 12-22 have been withdrawn and
claims 23-27 have been canceled.1 App. Br. 5. We have jurisdiction under
35 U.S.C. § 6.
We AFFIRM.
THE INVENTION
Claim 1 illustrates the claimed subject matter on appeal:
1. A method of playing a wagering game using poker rankings;
wherein a player places at least an Ante wager that places
value at risk prior to seeing any cards in play of a hand of the
wagering game;
the player is provided with an opportunity to make at
least one additional play wager that places additional value at
risk;
the method further comprising the player making at least
one of a first play wager and a second play wager in the game
subsequent to the Ante wager and after seeing at least a first
card in the play of the wagering game,
wherein when a player elects to make a first play wager
or not make the first play wager, that election changes options
available to the player on the second play wager, depending
upon the election; and
resolving all wagers.

1 The Examiner finally rejected claim 28, which depends from claim 1, in
the Office Action that Appellant appealed. See Final Rej. 3. Appellant has
not appealed the rejection of claim 28. See App. Br. 5. Upon return of
jurisdiction of this application to the Examiner, the Examiner should
consider canceling claim 28. See Ex parte Ghuman, 88 USPQ2d 1478
(BPAI 2008) (per curiam).
Appeal 2010-003897
Application 11/156,352

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ANALYSIS
Appellant argues claims 1-11, 29, and 30 as a group. App. Br. 9-14.
We select claim 1 as representative. See 37 C.F.R. 41.37(c)(1)(vii) (2011).
Claims 2-11, 29, and 30 stand or fall with claim 1.
The Examiner found that Conklin discloses a wagering game wherein
a player places an Ante wager 50 before seeing any cards of the wagering
game, has an opportunity to make at least one first play wager 40 that places
additional value at risk, and a second play wager 60 subsequent to the Ante
wager, wherein the election of the first play wager 40 changes the options
available on the second wager 60 depending on the election. Ans. 3-4. The
Examiner also found that placing an additional amount identical to a player’s
Ante bet via draw option 60 is a wager because it places more money at risk
in the game with the hope of receiving better cards to form a stronger hand
and increase the player’s chances of winning. Ans. 4, 5-6. The Examiner
also found that a player decides whether or not to place a second wager in
deciding the possibilities of losing his first ante wager based solely on the
original cards dealt and the possibilities of increasing his chances of winning
by placing a second wager in hopes of getting better cards. Ans. 6. The
Examiner further found that any chips placed in a wagering game, such as
“buy chips,” would be considered a wager by a skilled artisan. Ans. 5.
Appellant argues that a wager is a bet where something is placed “at
risk” on an uncertain event and is only lost upon occurrence of an adverse
event, whereas a fee is paid without any hope of return and is a guaranteed
loss and thus is not placed at risk. App. Br. 9; Reply Br. 6-9.2 Appellant
also argues that “Conklin clearly discloses fees and not wagers” because

2 Refers to Reply Brief filed February 23, 2009.
Appeal 2010-003897
Application 11/156,352

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“[w]hen Conklin pays the fees for additional playing cards, that money goes
directly to the casino and there is no chance of a higher payout being
possible as compared to when a fee is not paid AND THAT ‘FEE’ IS
NEVER RETURNED TO THE PLAYER.” App. Br. 93 (emphasis in
original); Reply Br. 6-8. Appellant also argues that a “fee is not a wager
according to any and all commonly accepted and broadest meaning
associated with the terms in the gaming field.” App. Br. 10 (emphasis in
original). Appellant discusses various poker games to illustrate the
difference between a wager and a fee. App. Br. 9-10.
The Examiner’s finding that the payment 60 is a wager is reasonable
and consistent with claim 1, which does not recite any feature of a wager
that distinguishes over Conklin. The Examiner reasonably found that the
purchase of draw cards in Conklin is a wager that places additional value at
risk in hopes of receiving better cards that improve a player’s chances of
winning and receiving a higher payout.4 Ans. 5-6. This finding is consistent

3 Appellant states that page 2136 of Random House Compact Abridged
Dictionary is submitted herewith to support the position that “fees” are not
“wagers” or “bets” (App. Br. 9); however, Appellant has not provided a
copy of page 2136 (see App. Br. 20 (Evidence Appendix)). See Ans. 5.
4 A player can obtain one or two draw cards by placing an amount 60 in buy
chips equal to the player’s ante bet on top of the discarded cards. Conklin,
para. [0054]. The game hand resulting from exercise of a draw card option
qualifies to win the ante and a call bet payout based on poker rankings. Id.,
paras. [0033, 0058, 0064-0065]. The amount 60 that is paid for draw cards
effectively increases the player’s wager and is a bet that the draw cards may
improve a player’s chances of winning a game, receiving a higher payout on
the call wager, and receiving a bonus payment based on the player’s hand
with the draw cards versus the original hand. Id., paras. [0033, 0036, 0065].
The fact that the buy chips are not put into a pot of potential winnings does
not change the fact that buy chips are a wager in that they increase the
Appeal 2010-003897
Application 11/156,352

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with Appellant’s position that a wager is placed at risk on an uncertain event
and can improve a return (App. Br. 9; Reply Br. 6-7) and also is consistent
with an ordinary, customary meaning of “wager” as “something (as a sum of
money) risked on an uncertain event.” MERRIAM WEBSTER’S COLLEGIATE®
DICTIONARY (11th ed. 2005); see Ans. 4.
Appellant’s argument that paying a fee for additional cards does not
change the options of a second play wager because there is no second play
wager (App. Br. 12-13) does not persuade us of error in the Examiner’s
finding that payment of a first play wager 40 changes the options available
on the second play wager 60 because it allows the player to continue in the
game and choose whether or not to place a second play wager 60 that may
not be placed if a first play wager 40 is not placed. Ans. 3-4. Appellant’s
argument that the amount 60 paid for additional cards is not a wager because
Conklin characterizes it as a fee (App. Br. 12 (citing para. [0008])) is not
persuasive because Appellant’s proposed definition and an ordinary and
customary meaning of “wager” encompasses such fees. Appellant has not
pointed to anything in the Specification to distinguish the claimed wagers
over Conklin.5 As such, we sustain the rejection of claims 1-11, 29, and 30.

amount of money the player has at risk for that game hand played.
5 Appellant cites page 14, line 20 to page 15, line 5 of the Specification as
support for the claimed step of making a first play wager and second play
wager. App. Br. 7 (Summary of Claimed Subject Matter). This portion of
the Specification discusses a player’s opportunity to make play wagers at
various stages of the games including a Play wager, a second Play wager,
and additional wagers if allowed. Appellant also cites to page 14, lines 1-9
as support for the step of making at least one additional play wager that
places additional value at risk. App. Br. 7. This portion of the Specification
discloses that a player may make any additional wagers possible, if allowed
and the dealer would reveal cards in the dealer’s partial hand.
Appeal 2010-003897
Application 11/156,352

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DECISION
The rejection of claims 1-11, 29, and 30 under 35 U.S.C. 103(a) as
being unpatentable over Conklin in view of what is old and well-known in
poker games is AFFIRMED.
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).

AFFIRMED

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